Legwin v. McRee

Blandford, Justice.

Lott M. Legwin, in 1883, made his last will and testament, by which, in the fourth item thereof, he directed as follows;

“ I give and bequeath and devise all the balance of my estate, both real and personal and of every description, to my sister-in-law, Sarah A. McKee, to be used and enjoyed by her for and during her natural life, and at her death to go absolutely to the children of my brothers and sisters, share and share alike, by sale of my whole property, except that portion given to Pamely Legwin, for and during her natural life, in the third item of this will, and which, at her death, I wish sold and proceeds divided among the children of my brothers arid sisters, share and share alike.”

The plaintiffs in error insist that, under this will, the • children of the brothers and sisters of the testator did not take a vested, but a contingent, remainder.

We are of the opinion that the children of the brothers and sisters of the testa! or, who survived him and who were in life at the time of his death, did take a vested remainder in all this property; and the fact that he directed his executors to sell this property and divido it equally between them, share and share alike, does not make this a contingent remainder, but that was a mode in which the testator directed that these different shares should come to the remaindermen.

The case of Foster vs. McGinnis, 4 Ga. 377, is almost all fours with this, the court in that case holding that a remainder similar to this was a vested remainder. We think, furthermore, that under section 2266 of the code, this should be held to be a vested remainder. .

The courts will always hold remainders to be vested when, under the law, they can do so. That is the policy of our law. And it is no stretch of the law to hold this bequest to the children of the testator’s brothers and sisters to be a vested remainder. We think the judgment of the court below in so holding was right, and must be affirmed.