Harrison v. Jones

• Decision Date: 08 April 1889
• Citation: 82 Ga. 599,9 S.E. 527
• Parties: Harrison et al. v. Jones.
• Court: Georgia Supreme Court

9 S.E. 527

(82 Ga. 599)

Harrison et al.

v.Jones.

Supreme Court of Georgia.

April 8, 1889.

Deed—Construction—Heirs.

When an estate is limited in ultimate remainder to the right heirs by blood of the wife, (first tenant for life,) though not to take effect in possession until the death of the husband, (second tenant for life,) the persons contemplated to take in remainder are those kindred of the wife who, according to the laws of inheritance, would take by descent at her death; not such as would take at the death of the husband if the wife had survived until that time. In other words, the heirs of the first tenant for life are to be ascertained at her death, and not at the death of the second tenant for life.

(Syllabus by the Court.)

Error from superior court, Chatham county, Adams, Judge.

W. W. Montijomery, for plaintiff in error. J. R. Saussy, for defendants in error.

Bleckley, C. J. The instrument presented for our construction is an antenuptial settlement in trust, executed in 1842. The conveyance embraced both realty and personalty, but realty alone is involved in the present controversy. The literal terms of the instrument appear in the official report. So far as now material, the trusts created were substantially as follows: First, for the separate use of the wife during her life; secondly, then for the use of the husband during his life; thirdly, then for the use of the children, if any, in fee; and, fourthly, if no children, then and in that case, upon his death, for the use of her right heirs by blood, forever. She, having had no child, died in 1869. He died in 1886. At the time of her death, her right heirs by blood were a brother and a sister, both of whom died before he died, and both left children, some of them the plaintiffs inerro£, surviving when he died. The sole question for decision is whether these children or their parents were her "right heirs by blood, " within the meaning and legal effect of the settlement.

The general rule undoubtedly is that heirs are those persons upon whom a descendable estate is cast by law upon the owner's death. It must follow that "right heirs by blood" are such, and so many of the heirs general as would by reason of blood participate in such an estate were it so cast. All collateral inheritance is by reason of blood only. Brother and sister are collaterals; so are nephew and niece. It is not disputed that the former two are nearer in degree than the latter two. We can see nothing in the settlement to indicate that the heirs are to be looked for at the death of the husband, rather than at the death of the wife. As soon as those in whom the ultimate remainder was to vest were ascertained, that remainder vested; and these persons were ascertained when the wife died, for then it became known with absolute certainty who were her "right heirs by blood." They did not, by dying, cease to be such heirs, and admit a new set, but died without leaving any vacancy in...