Bank of Graymont v. Kingery

• Citation: 154 S.E. 355,170 Ga. 771
• Decision Date: 17 July 1930
• Docket Number: 7579.
• Parties: BANK OF GRAYMONT v. KINGERY.
• Court: Georgia Supreme Court

154 S.E. 355

170 Ga. 771

BANK OF GRAYMONT
v.
KINGERY.

No. 7579.

Supreme Court of Georgia

July 17, 1930

Syllabus by Editorial Staff.

Deed to immediate estate in land made to person not in esse is absolutely void.

Devise to daughter and her children at time when daughter had no children passed absolute estate to daughter, and child born after testator's death took no estate.

Error from Superior Court, Emanuel County; R. N. Hardeman, Judge.

Execution by the Bank of Graymont against land of J. Gordon Kingery to which Nannie Kingery filed a claim. Judgment for claimant, and plaintiff in execution brings error.

Affirmed.

Kirkland & Kirkland, of Metter, and Price & Spivey, of Swainsboro, for plaintiff in error.

Grayson C. Powell, of Swainsboro, for defendant in error.

Syllabus OPINION.

HINES, J.

1. On November 11, 1895, James Rountree conveyed by warranty deed to "Nannie Kingery, and her children now born, and those that may hereafter be born, the daughter and grandchildren of the said James Rountree." a described tract of land. J. Gordon Kingery, a son of said Nannie Kingery, was born on September 13, 1896. On May 25, 1927, the Bank of Graymont levied an execution which it held against J. Gordon Kingery upon his undivided remainder interest in the above land. Nannie Kingery filed her claim to the interest so levied on. Upon the trial of the issue formed upon this claim the trial judge directed a verdict in favor of the claimant. To this judgment the Bank of Graymont excepted.

1. It is now a well-established principle of law in this state that a deed to an immediate estate in land made to a person not in esse is absolutely void. Davis v. Hollingsworth, 113 Ga. 210, 38 S.E. 827, 84 Am.St.Rep. 233; Powell v. James, 141 Ga. 793, 82 S.E. 232; Butt v. Jackson, 148 Ga. 672, 97 S.E. 854; Handy v. Handy, 154 Ga. 686(2), 115 S.E. 114. So where, under a will probated in 1847, the testator devised to his daughter certain land "to her and her children," the daughter then having no children, the daughter took an absolute estate, and children born to her after the testator's death took under the will no estate by way of remainder or otherwise. Lofton v. Murchison, 80 Ga. 391, 7 S.E. 322. Where a deed conveyed land to A as trustee for B and her children, B having no children at the time of its execution, the children of B. born subsequently to the execution of this deed took no interest thereunder. Baird v. Brookin, 86 Ga. 709, 12 S.E. 981, 12...