Davidson v. Blackwell

Gilbert, J. Under the terms of the will Ellen Geiger, after-wards Ellen Pendergrass, a grandchild of the testator, took fee simple title to the land in question, defeasible upon her dying without child or children. Curles v. Wade, 151 Ga. 142 (106 S. E. 1). In the same item of the will it is further provided that on the occurrence of the event just mentioned the property devised to her "shall go to the other legatees named in this will, . . that is to say, to my children and grandchildren, to be divided between them as provided in Article 3rd above.” [52] Article 3rd provides that the land be sold and the proceeds thereof “ equally divided between all of my children and grandchildren/’ except one specified grandson, and “ each set of my grandchildren to take such share as would he going to his or her or their parents were he or she - in life, and no more.” Ransom Ii. Aken, father of the plaintiffs in error, as appears from the statement of facts preceding, executed a deed during his' lifetime to Ellen Pendergrass, conveying any remainder interest that he might have, and died previously to the death of Ellen Pendergrass. The question as to whether Ransom Aken, at the time of the execution of his deed, possessed an interest in the land which he was capable of conveying to Ellen Pendergrass, as against the grandchildren of the testator other than the plaintiffs m error, need not be decided; for, as we have pointed out further on in this decision, the plaintiffs in error, who are great-grandchildren of the testator, took no interest under the provisions of the will in favor of grandchildren. Any supposed claim of these plaintiffs in error is necessarily referable to their right of inheritance from Ransom Aken, their father; and if the estate in controversy here fell in to Ransom Aken, either upon the death -of the testator or upon the death of Ellen Pendergrass, so that had he never executed a conveyance to Ellen Pendergrass the plaintiffs in error would have inherited, when that estate did fall in, the deed which he executed to Ellen Pendergrass immediately became operative to convey the estate to her according to the terms of the conveyance, and, by reason of her deed, to the benefit of her grantee, J. IT. Bullard; so that in either event, irrespective of when the contingent interest vested, it was conveyed to Bullard by means of the deeds of Ransom Aken and Ellen Pendergrass. Isler v. Griffin, 134 Ga. 192 (4) (61 S. E. 854); Irby v. Smith, 147 Ga. 329 (93 S. E. 877). Inasmuch as the ’plaintiffs in error, great-grandchildren of the testator, could not take this property by inheritance from Ransom Aken, his deed having conveyed whatever interest he might have had, the remaining question is whether they could take under the provisions in the will in favor of grandchildren; in other words, does the term “grandchildren” include “great-grandchildren,” the plaintiffs in error insisting that under the terms of the will the testator intended to include great-grandchildren. [53] as well as grandchildren, to take the share or interest of their deceased parent. It has been decided by' this court that the word “ children,” unless the will discloses a contrary intention, does not include grandchildren. Walker v. Williamson, 25 Ga. 549; Willis v. Jenkins, 30 Ga. 167; Crawley v. Kendrick, 122 Ga. 183 (50 S. E. 41, 2 Ann. Cas. 643); Lyon v. Baker, 122 Ga. 183 (50 S. E. 44); Fulghum v. Strickland, 123 Ga. 258 (51 S. E. 294); Smith v. Smith, 130 Ga. 532 (61 S. E. 114, 124 Am. St. R. 177); Brookings v. Trawick, 151 Ga. 335 (106 S. E. 550), and authorities cited. See also Pimel v. Betjemann, 183 N. Y. 194 (76 N. E. 157 2 L. R. A. (N. S.) 580, 5 Ann. Cas. 239); 1 Words & Phrases (2d Series), 675. The same principle would apply,'in considering the intention of the maker of a will who had referred therein to children and grandchildren, as to whether it was his intention to include greatrgrandehildren. 28 R. C. L. 253; Cummings v. Plummer, 94 Ind. 403 (48 Am. R. 167); Thomas v. Thomas, 97 Miss. 697 (7) (53 So. 630); 40 Cyc. 1455. In view of the authorities just cited we find no basis upon which the words “ children and grandchildren,” as employed in this will, can be construed to include great-grandchildren. It necessarily follows that since the plaintiffs in error are great-grandchildren, they acquired no interest in the land in question on the death of Ellen Pendergrass. Moreover, if the estate of Eansom Aken, the father of the plaintiffs in error, acquired any interest in the land at the death of Ellen Pendergrass, it would operate to the benefit of the grantee in his deed, relating back to the time of the grant, and would serve to convey that title and interest out of the estate. Ellen Pendergrass having, in her lifetime, conveyed the title to J. H. Bullard, it would necessarily follow that the trial court correctly decided that J. H. Bullard acquired an interest which otherwise would have gone to Eansom H. Aken on the death of Ellen Pendergrass. Judgment affirmed. All the Justices concur.