Davis v. Hollingsworth

• Decision Date: 24 April 1901
• Parties: DAVIS . v. HOLLINGSWORTH.
• Court: Georgia Supreme Court

38 S.E. 827

113 Ga. 210

DAVIS .

v.HOLLINGSWORTH.

Supreme Court of Georgia.

April 24, 1901.

DEED—CONSTRUCTION—BENEFICIARIES.

1. A deed of gift to land, executed and delivered in 1893, directly to a married daughter "and her children or child, should any be born to her [she having no child at that time], and, in the event [she] should die without any child or children in life, then said land is to revert unto [the donor], if living at the time of reversion, and, if not living, then to his legal heirs, " conveys the fee to the daughter, subject to be devested in favor of the donor or his legal heirs upon her dying without leaving a child in life at her death.

2. Such a deed conveys no interest in the land to any child of the daughter born after the execution and delivery of the instrument.

(Syllabus by the Court.)

Error from superior court, Bulloch county; B. D. Evans, Judge.

Action by L. S. Davis, by next friend, against William Hollingsworth. Judgment for defendant, and plaintiff brings error. Affirmed.

Brannen & Moore and J. F. Brannen, for plaintiff in error.

Groover & Johnston, for defendant in error.

LEWIS, J. On January 12, 1893, George W. Waters conveyed to his daughter Mary K. Davis, "and her children or child, should any be born to her, " certain land in Bulloch county; the deed stipulating that, "in the event the said Mary K. Davis should die without any child or children in life, then said land is to revert unto said George W. Waters, If living at the time of reversion, and, if not living, then to his legal heirs." Mary K. Davis had no children at the time this deed was executed, but she subsequently gave birth to a daughter, Leonora Davis, for whose benefit suit in ejectment was brought against Hollingsworth to recover possession of the land In dispute. At the time of the commencement of this suit Leonora Davis was the only child of Mary K. Davis, but since then a second child has been born. Hollingsworth claimed under a deed from Jones, to whom Mrs. Davis had conveyed the land. The suit in ejectment was by agree ment tried by the judge of the superior court without the intervention of a jury, under an agreed statement of facts, the substance of which is contained in the foregoing. Judgment was rendered for the defendant, on the theory that the deed from Waters to his daughter Mrs. Davis was an attempt to create an estate tail, and passed the fee to her, and that therefore Hollingsworth took a good fee-simple title from Jones, under whom he claimed. To this judgment the plaintiff excepts.

We think that there are two Insuperable reasons why the children of Mary K. Davis, of whom the plaintiff in error is one, can acquire no title to the land in dispute under the terms of the deed to which reference has been made. In the first place, they were not born or in esse when the deed was executed and delivered. It is a well-established principle of law that a deed to an immediate estate In land made to a person not in esse Is absolutely void. See 9 Am. & Eng. Enc. Law (2d Ed.) 131; Devi. Deeds, § 123; Martind. Conv. § 34; Tied. Real Prop. § 797; Dupree v. Dupree (N. C.) 59 Am. Dec. 590; Heath v. Heath (N. C.) 19 S. E. 155; Morris v. Caudle III) 52 N. E. 1030, 44 L. R. A. 489, and cases cited. In the second place, the legal title was not conveyed to any living person as trustee for such after-born children as the daughter Mrs. Mary K. Davis might have. Under the decisions of this court, this course is permissible. See Hollis v. Lawton, 107 Ga. 102, 32 S. E. 846. This principle is also recognized in the cases of Pierce v. Brooks, 52 Ga. 425; Brady v. Walters, 55 Ga. 25; Lee v. Tucker, 56 Ga. 9; Carswell v. Schley, 56 Ga. 108; Boyd v. England, 56 Ga 598; Adams v. Barlow, 69 Ga. 302; Sanders v. Warehouse Co., 107 Ga. 49, 32 S. E. 610; and Taylor v. Brown, 112 Ga. 758, 38 S. E. 66. This being true, the legal effect of this part of the deed is the same as if it had been made to Mary K. Davis and her children (she having no children at the time), which, standing alone, would create an express estate tall, and invest her, under the act of December 21, 1821 (Cobb's Dig. p. 169), with the absolute fee. Civ. Code, § 3085; Butler v. Ralston, 69 Ga. 485; Ewing v. Shropshire, 80 Ga 382, 7 S. E. 554; Lofton v. Murchison, 80 Ga 391, 7 S. E. 322; Estill v. Beers, 82 Ga. 612,

9 S. E. 596; Goodrich v. Pearce, 83 Ga 783,

10 S. E. 451; Baird v. Brookin, 86 Ga. 709, 12 S. E. 981, 12 L. R. A. 157. If the limitation over had been upon an indefinite failure of issue, the result would have been the same, and the absolute fee would have remained in her. Wiley v. Smith, 3 Ga. 551, 562; Brown v. Weaver, 28 Ga 378. But the fee conferred upon Mary K. Davis, in the manner mentioned, was not absolute, under all the terms of this...