Arnold v. Richardson

• Decision Date: 07 March 1968
• Docket Number: No. 24409,24409
• Citation: Arnold v. Richardson, 160 S.E.2d 809, 224 Ga. 181 (Ga. 1968)
• Parties: Catherine R. ARNOLD v. Leonard B. RICHARDSON et al.
• Court: Georgia Supreme Court

Page 809

160 S.E.2d 809

224 Ga. 181

Catherine R. ARNOLD v. Leonard B. RICHARDSON et al.

No. 24409.

Supreme Court of Georgia.

March 7, 1968.

Rehearing Denied March 21, 1968.

Henry L. Bowden, Lokey & Bowden, John A. Nix, Atlanta, for appellant.

William W. Mundy, Cedartown, for appellees.

Syllabus Opinion by the Court

PER CURIAM.

This is a declartory judgment action for construction of a will. Item 3 thereof provides: 'After the death of my wife (who was previously given a life estate), I give, bequeath and devise unto my three children, to wit: Everard D. Richardson, Marion S. Richardson, and Mrs. Florine Richardson Van Cleave for an during their natural lives all my property, share and share alike, with remainder to their children. Upon the death of any of my children, his child or children shall immediately succeed to the interest and share of such deceased child and parent. Should any of my children die without issue, that is without child or children, him or her surviving, then the share bequeathed and devised herein to such child for life shall go to and vest in the children of my other children, that is my grandchildren, each set of grandchildren should there be more than one set of grandchildren at the death of the last of my children herein named, to take as a class and not per capita.'

Item 4 in part provides: '* * * it being my wish that my estate in its present form, so far as possible, should go ultimately to my children and grandchildren, in such manner and as provided in Item Three of my will.'

The testator died in 1926 and his wife in 1933. In 1947 Mrs. Florine Richardson Van Cleave died without ever having any children. In 1964 Everard D. Richardson died with one son, Leonard B. Richardson, surviving him, one son, Everard D. Richardson, Jr., having died without issue in 1953. Both grandsons were in life at the death of the testator. In 1967 Marion S. Richardson died without ever having any children. The deceased son of Everard D. Richardson (grandson of the testator) devised his entire estate to his wife. The surviving grandson of the testator claims the entire estate of his grandfather and the wife of the deceased grandson claims one-half of it. The trial court found that the surviving grandson was entitled to the entire estate and this appeal is from that judgment. Held:

'In construing a will the court is required to examine it as a whole and to search diligently for the intention of the testator as the same may be revealed therein. Code, § 113-806; Sproull v. Graves, 194 Ga. 66, 20 S.E.2d 613; Mills v. Tyrus, 195 Ga. 119, 23 S.E.2d 259; Yancey v. Grafton, 197 Ga. 117, 27 S.E.2d 857; Blakeman v. Harwell, 198 Ga. 165, 31 S.E.2d 50. This search for the intention of testator should be made by two methods: (1) by looking to the will as a whole, and (2) by scrutinizing every phrase that it contains. Comer v. Citizens & Southern Nat. Bank, 182 Ga. 1, 185 S.E. 77. These and other rules of law governing the construction of wills are so well understood that they require no further discussion here. It is not rules of law but rather the meaning of the verbiage of the will that presents the difficulty we encounter in reaching a decision.' Patterson v. Patterson, 208 Ga. 17, 20(1), 64 S.E.2d 585.

In the instant case the language 'I give * * * unto my three children * * * during their natural lives all my property, share and share alike, with remainder to their children' without more would clearly and indisputably give to the grandchildren a vested remainder in the estate of their grandfather. Miller v. Brown, 215 Ga. 148, 109 S.E.2d 741. However, it is apparent that the following sentence: 'Upon the death of any of my children, his child or children shall immediately succeed to the interest and share of such deceased child and parent' was inserted for the purpose of qualifying the preceding sentence and the testator thereby manifests an intention to vest the estate in the children surviving their parent. In our opinion the words 'immediately succeed' must necessarily relate to a living person. Therefore in the first portion of the devise, we conclude that the testator intended to create a contingent remainder in the children of each life tenant conditioned upon their surviving their parent. This conclusion is further supported by the latter portion of the devise which manifests the same intention. It directs that should a life tenant die 'without child or children, him or her surviving' such estates 'shall go to and vest in the children of my other children, that is my grandchildren, each set of grandchildren should there be more than one set of grandchildren at the death of the last of my children herein named, to take as a class and not per capita.' A careful reading of this provision discloses that the testator intended that these estates were to vest at the death of the last life tenant in the grandchildren surviving at that time. We have reached this conclusion from the words 'go to and vest * * * at the death of the last of my children' as above provided. We believe this language manifests an intention of the testator to withhold the vesting of these estates until the death of the last life tenant at which time the survivors can be ascertained. Accordingly, we conclude that the contingency expressed in this portion of the devise is also as to the person. To hold otherwise would permit the heirs of deceased 'children of my other children' to inherit but at the same time deny the heirs of deceased children of the life tenant the right to inherit. Britt v. Fincher, 202 Ga. 661(5), 44 S.E.2d 372; Jefferson v. Bright, 189 Ga. 866, 8 S.E.2d 21. The result we have reached is in accord with Item 4 by which the testator expressed his wish that his estate 'should go ultimately to my children and grandchildren.'

Therefore, the trial court did not err in finding that the surviving grandson, Leonard B. Richardson, was entitled to the entire estate of his grandfather.

Judgment affirmed.

All the Justice concur, except MOBLEY, GRICE and UNDERCOFLER, JJ., who dissent.

DUCKWORTH, C.J., concurs specially.

DUCKWORTH, Chief Justice (concurring specially).

I fully concur in the opinion by the majority, but I think there is another solid reason why the wife of a grandson can not take. However much our decisions may appear to conflict on other rulings, there is no conflict in the holding that the intent of the testator, if discoverable, must control. This testator left no doubt of his intention that none but 'grandchildren' could take where a child died without children him or her surviving. This could only mean that without a surviving child, even though his child had a dozen deceased children who left either a wife or husband, none of the estate could go to such person or persons. It is unreasonable to attribute to the mind that thus expressly excluded such spouses of grandchildren an intention that as to his children dying with one child surviving him and one predeceasing him, a complete about-face was intended so as to give the wife of a non-surviving grandchild a part of the estate. When making his will he could not foresee which of his three children would have children him or her surviving. Therefore, the conclusion is irresistible that he intended all to be treated alike, hence only grandchildren, and not their wives or husbands should take. He even spelled out his intention when he said it was his intention that his children and grandchildren should take.

UNDERCOFLER, Justice (dissenting).

'The law favors the vesting of remainders in all cases of doubt. 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 shall appear.' Code Ann. § 85-708. 'If the remainderman shall die before the time arrives for possessing his estate in remainder, his heirs shall be entitled to a vested-remainder interest, and to a contingent-remainder interest when the contingency is not as to the person but as to the event.' Code Ann. § 85-704.

'Under the provisions of our law and especially Code §§ 85-704 and 85-708, and under the decisions of this court, it is well established that in Georgia the policy of the law is to favor the vesting of remainders at the earliest possible time unless the intention of the testator is clearly manifest to the contrary. Thomas v. Owens, 131 Ga. 248, 62 S.E. 218. In the instant case, the language '* * * is given to said children for and during the term of their natural lives only, and after their death to their children * * *' without more would clearly and indisputably give to the grandchildren a vested remainder in the estate of their grandfather, which would vest at the time of the birth of the first grandchild, subject to open and let in afterborn grandchildren. Crawley v. Kendrick, 122 Ga. 183, 50 S.E. 41, 2 Ann.Cas. 643; Harris v. McDonald, 152 Ga. 18, 25, 108 S.E. 448; McDougald v. Kennedy, 203 Ga. 144, 45 S.E.2d 654. It is contended however that the language, 'or representatives of deceased children, per stirpes, shows an intention on the part of the testator to create a contingent remainder, which would not vest until the death of the second life tenant, and that, since this granddaughter died before the second life tenant, leaving one son who likewise predeceased deceased the second life tenant, leaving no descendants, there was nothing for the petitioners to inherit since no estate was ever vested in the granddaughter or her representatives. We can not agree with this contention. Where an instrument is susceptible to two constructions, the one favorable to vested and unfavorable to contingent remainders should be adopted. Fields v. Lewis, 118 Ga. 573, 45 S.E. 437. Divesting clauses, especially as to remainders, following the grant of an absolute estate should be strictly construed so as to vest the estate absolutely at the earliest...