DeVane v. Young

Hill, J. (After stating the foregoing facts.) Item 4 of‘the will of Gartner Joyce is as follows: “ I desire and direct that at the death of my beloved wife, Hester Joyce, provided she should survive me, that all of the property of which I may die possessed, and the increase thereof, shall be retained and managed by my executors hereinafter mentioned, for the support and maintenance of my said beloved daughters that are then unmarried, and that said property shall be retained for the exclusive benefit of such as remain unmarried, so long as they are unmarried, until the last of said daughters shall either marry or die. The true intent I have in this item is to secure a home and support for my wife during life and for my daughters so long as they remain unmarried.” Item 7 of the will is as follows: “ I desire and direct that when my said beloved wife shall have died, should she survive me, and when all of my daughters shall have married or died, that all of the property then remaining to my said estate shall be equally divided, share and share alike, between all my children; and in case any of my children shall have died leaving a child or children, then said child or children to stand in place of the deceased parent and draw that share to which said parent would have been entitled to if in life.” The trial judge, to whom was submitted the case on the foregoing statement of facts, rendered judgment in favor of the defendant, H. A. Young as guardian of Edna E. Young, against C. B. DeVane as administrator of the estate of Gartner Joyce,deceased. We do not know upon what theory the court below based [838] his judgment; but on argument here counsel for the defendant sought to uphold the judgment on the theory that the adverse holding of the defendant in error and those under whom he holds ripened into a prescriptive title as against “ the contingent remaindermen,” who are represented by the administrator; and that the executor of Gartner Joyce was clothed with the title to the property for two purposes: first, to support the widow and unmarried daughters of the testator during their lives; and second, he was to hold the title and the property intact until the death of the survivor of the wife and unmarried daughters, at which. time the title to the property in remainder would vest in the children of the testator, and if any of them should be dead, in their children. It is argued, therefore, that the remainder was contingent upon the survival of the children of Gartner Joyce; and that it could not be known, until the death of the unmarried daughters of Gartner Joyce, who was to take the property, and therefore that this was not a legal estate vesting in the remaindermen, but “the trust was executory” at least until the death of the life-tenant, and that the interest of the remaindermen was equitable. It is argued, that, the title and right of possession being vested in the executor, and the predecessors in title of the defendant having entered into possession and held the land adversely for more than seven years during the life of the executor, and while he was still executor, the adverse possession ripened into a prescriptive title, not only against whatever interest the widow and single daughters might have had, but against any title which the children and grandchildren of the testator might have in remainder. On the other hand it is contended by the plaintiff (citing Fields v. Lewis, 118 Ga. 573, 45 S. E. 437, Sumpter v. Carter, 115 Ga. 893, 42 S. E. 324, 60 L. R. A. 274, and Boyd v. Sanders, 141 Ga. 405, 81 S. E. 205), that where during the continuance of the life-estate one of the children of the lifeJenant conveyed his interest and died leaving children who were in life at the termination of the life-estate, the purchaser did not acquire a perfect title, but after the death of the life-tenant the children of such child would have a right of action. But the view we take of this case is this: Under items 4 and 7 of the will of Gartner Joyce, his widow and unmarried daughters took a life-estate, with a provision that the executor should retain [839] and manage the property devised for their support and maintenance during their lives, or as long as they were unmarried, as provided in the will, with a vested remainder in all his children, subject to be divested on their dying without child or children. It will be observed that his children were in life at the time of the execution of the will. The title to the remainder interest therefore vested in the children, as above stated, on the death of the testator, but the possession was postponed until the death of the last life-tenant. Kemainders are either vested or contingent. A vested remainder is one limited to a certain person at a certain time, or upon the happening of a necessary event. A contingent remainder is one limited to an uncertain person, or upon an event which may or may not happen. Civil Code (1910), § 3676. Here the remainder was limited to certain persons upon the happening of a necessary event, that is, the death of the last life-tenant. The death of the life-tenants was a necessary event. Therefore it seems certain that the remainder created by the will comes within the definition of a vested remainder. The law favors the vesting of remainders in all cases of doubt; and in construing wills words of survivorship shall refer to the death of the testator in order to vest remainders, unless a manifest intention to the contrary appears. Civil Code (1910), § 3680. “In case of devise to two daughters for their lives, and, after their respective deaths, to child or children of daughters, remainder vested, at testator’s death, in children then living, to be enjoyed at the death of surviving daughter, but subject to open and take in children born between time of vesting and time of enjoyment; all took per capita.” Park’s note to § 3680, citing Olmstead v. Dunn, 72 Ga. 850 (2, 3). From the statement of facts it appears that Sallie' Austin, the last life-tenant, joined in the deeds under which the defendant holds; and as it does not appear that she was not sui juris at the time when she signed the deeds, it will be presumed that she was. She is therefore bound by her deeds, and, relatively to her, the defendant would take whatever interest she had in the estate. In view of the authorities cited and of what has been said, it it unnecessary to consider whether the executor was also a trustee with the title in him as such, as contended, against whom prescription will run. If the title to the remainder interest in the land vested in his children at testator’s death, as we hold it did, then [840] they could dispose of their respective interests before the death of the life-tenants, with possession in the purchaser postponed until their death. But as all the life-tenants are dead except one; and as she has executed deeds to her interest, it follows that the defendant and those under whom she holds secured good title to the land, regardless of prescription; and that the trial judge did not err in finding in favor of the defendant. Judgment affirmed. All the Justices concur.