McDougald v. Kennedy

Construing the provisions of the will in the instant case, the testator's two named daughters took under item two of the will an indefeasibly vested remainder interest in the property covered by that item. As to the property covered by item three of the will, these same children took a remainder interest in a one-third share of the estate devised to the testator's wife for life or widowhood, which remainder interest became vested at the time the estate was divided, but was subject to be divested in favor of the respective grandchildren in the event such named children should predecease the life tenant leaving children of their own. With respect to the remainder interest sued for by the husband of one of the remaindermen, since the divesting contingency in favor of grandchildren became impossible of happening, in that this daughter had no children at the time of her dying intestate prior to the termination of the life estate, her husband was entitled to take, not under the will, but by inheritance from his wife that vested share of the estate to which his wife would have been entitled had she not predeceased the life tenant. Code, § 85-704; Britt v. Fincher, 202 Ga. 661 (3) (a) (44 S.E.2d 372); Fields v. Lewis, 118 Ga. 573, 574 (2) (45 S.E. 437). Since the effect of the judgment of the court below is in consonance with what is here ruled, that judgment construing the will as vesting the remainder estate is affirmed.

2. Since no exception is taken to the judgment and decree of the trial court insofar as it adjudicates the specific interests of various parties to the suit, the only point of contest under the bill of exceptions being as to whether or not the remainder estate had vested prior to the death of the life tenant, it follows that the disposition of the case as made by the trial court will be affirmed.

Judgment affirmed. All the Justices concur, except Wyatt, J., who took no part in the consideration or decision of this case.

No. 15982. DECEMBER 1, 1947. STATEMENT OF FACTS BY JENKINS, CHIEF JUSTICE. The judgment of the trial court in the instant case recites as follows: "The above-stated cause has been submitted to me for decision by counsel for all parties on the pleadings in the case. The whole issue turns on the interpretation of the will of Horace S. Blitch, deceased, a copy of which is attached to the petition, marked ``Exhibit A'." It was further stated that "there is no issue as to the facts which are set out in the pleadings." The will of Horace S. Blitch was executed in 1901 and provided by items two, three and four as follows: "Item II. I give my beloved wife, America L. Blitch, during her life my house and lot in the town of Statesboro where we now reside, and at her death to become the property of my children. . . Item III. I desire my estate kept together until my youngest child, Lucy, shall have reached the age of twenty-one years, and in case of her death before obtaining her majority, I desire it kept together until my other daughter, Georgia Leila, shall have reached the age of twenty-five years, at which time I desire my entire estate divided into three parts; each child, or its lineal descendants, to receive one-third, and one-third to be held in trust by my executors for my wife; she receiving the interest or income during her life or widowhood, and at her death or marriage the same to be divided between my children or their lineal descendants. Item IV. Prior to the division of my estate, I desire my wife to have the income arising from the same, or so much thereof as she may deem necessary for her maintenance, and the maintenance of my children."

The testator died in 1903, leaving a wife and the two above named children. In 1915 a division of the property was made as directed in item three of the will, with each of the two named children taking a one-third share of the estate in fee, while the testator's wife took a one-third share of the estate for her life or widowhood. The daughter, Lucy Blitch, predeceased the life tenant, intestate and without children, but was survived by her husband, Cecil E. Kennedy. The life tenant died in 1946, and Cecil E. Kennedy, claiming by inheritance the remainder interest of his wife, brought the instant suit for partition. Exception is to the order of the trial court construing the remainder interest of Lucy Blitch to have been vested, and decreeing that Cecil E. Kennedy was entitled to take by inheritance the vested remainder interest of his wife.