Sterling v. Huntley

Lumpkin, J. (After stating the' foregoing facts.) While the demurrer was general, the bill -of exceptions recited the point decided by the judge; and in this court only a single question was urged or argued, and to that we confine our decision, whether or not there may have been other grounds for affirming the judgment. In Howell v. Wilson, 137 Ga. 710 (74 S. E. 255), the sufficiency of the allegations as to what was done by the defendants was presented and urged here. The demurrer was overruled, and on exception the question was whether the petition set out a good case as [23] against a demurrer. In the instant case the question presented is this: If .his wife survived the grantor, and the daughter survived her, did the daughter take a fee-simple estate- in remainder, or a base fee subject to be divested and pass to her brothers, or their heirs, if she should thereafter die without issue? This turns on the time to which the words “in the event of the said [daughter’s] dying without issue,” etc., shall be referred. The plaintiff contends that they only provide for the event of the daughter’s dying without issue during the lifetime of her mother, and that upon her surviving her mother the remainder ’ became an absolute fee. The defendants contend that this contingency was not limited to the lifetime of the mother, and that after the mother died the daughter held, not an absolute, but a base or defeasible fee. After the death of the grantor, his wife was to hold the property during her life, and “at her death'” it was to belong to the daughter. In the event of the daughter dying without issue, “then at her death” the property was to be “equally divided” between her brothers or their heirs. It was argued that the words “at her death,” in the last clause, referred to the death of the mother. Taking these words in the connection in which they are used, and considering that they immediately follow the naming of the daughter, not the mother, we think they clearly mean at the death of the daughter. And this is made more certain by the next statement, that the property should be divided between “her brothers,” naming brothers of the daughter. It would do violence to plain language to hold that “at her death” meant at the death of the mother- (not mentioned in that immediate connection), but the next words providing for a division between “her brothers” meant brothers of the daughter. To hold that the provision made in the event that the daughter should die without issue referred solely to her dying without issue during the lifetime of the life-tenant, as contended, would make this clause antagonistic to the general scheme of the deed of gift. If the daughter should die without issue, “then at her death” the property was to be divided between her brothers or their heirs. If this meant that at her death during the lifetime of the life-tenant there should be a division between the brothers, it would destroy both the life-estate of the mother and the possible reversion to the grantor, if he should survive his wife, or at least would interfere [24] with their enjoyment. It could hardly have been the intention of the grantor to have the property divided between his sons upon the death of his daughter before the termination of the life-estate and possibly before it could be known whether the daughter would take any interest at all, or whether the entire property would revert to the grantor himself if he survived his wife. Construing the instrument as a whole, we think the grantor created an estate for life in his wife, with reversion in fee to himself, if he survived her; that if she survived him, she retained the estate during her life, with remainder, after her death, to the grantor’s daughter; that this remainder was a base fee, subject to be divested if the daughter should die without issue; that this contingency did not terminate upon the death of the life-tenant; and that in no event did the grantor contemplate a destruction of the life-estate and a division during its. continuance. As to the creation of a base fee see Hill v. Terrell, 123 Ga. 49 (51 S. E. 81). We recognize the rule that courts are disposed to construe wills and deeds so as to vest .-remainders. In' construing wills, the rule has been embodied in the_code that “words of survivorship shall refer to the death of the testator in order to ve£t remainders, unless a manifest intention to the contrary appears.” Civil Code, § 3680. And where a future time is fixed for a division or distribution, there are decisions which hold that words of survivorship will be referred to such time, in the absence of anything to show a contrary intent. But if the instrument, whether a will or a deed, shows clearly a different intent on the part of the maker, it will control. It would be unprofitable to take up the various cases cited by counsel for the plaintiff and discuss the language used in the wills or deeds there involved, and to show the difference between them and the terms of the instrument now before us. It may be stated generally that in none of them are terms of the character above dealt with employed, which plainly show that the intention of the grantor was that the words, in the event of the daughter “dying without issue,” .should not be limited to the continuance of the life-estate. Judgment affirmed. All the Justices concur.