Jenkins v. Shuften

• Decision Date: 10 January 1950
• Docket Number: No. 16908,16908
• Citation: Jenkins v. Shuften, 206 Ga. 315, 57 S.E.2d 283 (Ga. 1950)
• Parties: JENKINS v. SHUFTEN et al.
• Court: Georgia Supreme Court

Page 283

57 S.E.2d 283

206 Ga. 315

JENKINS v. SHUFTEN et al.

No. 16908.

Supreme Court of Georgia.

Jan. 10, 1950.

Syllabus by the Court.

1. A fee-simple defeasible estate with a legal executory limitation is created in this State when a testator gives land to one in fee simple, but subsequently provides in his will that, in case a certain event does or does not happen, the estate will go to another.

2. A power of disposition contained in a will and the mode of its exercise, when the latter will have the effect of cutting out executory devisees, will be strictly construed; and when such power of disposition must be exercised by the holder of a defeasible fee during his lifetime, he is not authorized to dispose of the property by will, but only by an inter vivos conveyance.

Willis Braswell Sr. died on September 24, 1922, leaving a widow and seven children. Promptly thereafter, his will was probated in Bibb County, Georgia. His son, Jim Braswell, qualified as executor of his estate. Subject to a life estate in his widow, he gave his property equally to his children. He authorized his executor, after the death of his widow, to sell any or all of his real estate or personal property, without the order of any court, and whenever he thought it would be to the best interest of his estate to do so. He gave his executor authority to hold the estate together and direction with reference to the management of it. The testator's widow died in 1925. Willis Braswell Jr., a son of the testator, died testate on December 17, 1929, and his will was duly probated. In Items 1, 2, and 3 of his will he gave his widow, Aneuretta Braswell, certain real and personal property which he individually owned, free from all charge and limitation whatever, to her own proper use, benefit, and behoof forever, but each of these three items contained these words: 'Provided, however, should she not dispose of the same during her lifetime, then it shall pass to, in fee simple, and be equally divided among my following named sisters and brother: [naming them].' Item 4 of his will is as follows: 'I give, bequeath, and devise all the rest and residue of my real and personal estate, whatsoever and wheresoever situate, of which I may die seized and possessed, or over which I may have testamentary control, or to which I may be in any way entitled, unto my wife, Aneuretta Braswell, free from all charge and limitation whatever; to her own proper use, benefit, and behoof forever: Provided however, should she not dispose of the same during her lifetime, then it shall pass to, in fee simple, and be equally divided among all of my sisters and my brother named and specified in Paragraph One (1), supra.' Aneuretta Braswell died on June 2, 1937, a resident of Philadelphia, Pennsylvania, and left a will which was executed in the presence of two witnesses only. By that will she gave all of her estate, real, personal and mixed, to Willis Braswell Sheftall, her nephew. On January 16, 1939, Olivia Braswell Shuften, Viola Braswell Glasco, and Lititia Braswell Duvall, three of the daughters of Willis Braswell Sr., filed an equitable suit in the Superior Court of Bibb County against Jim Braswell, as executor, and prayed for a construction of the will of Willis Braswell Sr., and for an accounting. At that time the estate consisted of both real and personal property. The executor filed an answer. Subsequently, Minnie Braswell Sheftall and Willis Braswell Sheftall were made parties. On July 2, 1940, the case was referred to an auditor to pass on all questions of law involved in the case which had not theretofore been passed upon and also all questions of fact. While the case was pending before the auditor, the parties agreed upon and settled all issues in the case, except the claim of Willis Braswell Sheftall to the interest of Willis Braswell Jr., in the estate of his deceased father. Afterwards, the auditor found as a matter of law that the will of Willis Braswell Jr. gave his widow, Aneuretta Braswell, an absolute fee-simple estate in all of the property which he was entitled to take under the will of his father, and that Willis Braswell Sheftall, as sole beneficiary under the will of Aneuretta Braswell, took a like estate in the same property under her will and was therefore entitled to the distributive share of Willis Braswell Jr., in his father's estate as of the date of Aneuretta Braswell's death, which occurred on June 2, 1937. The defendant executor, Jim Braswell, filed exceptions of law to the findings of the auditor. The trial judge sustained the auditor's findings and held that, under Item 4 of the will of Willis Braswell Jr., his widow took, either (1) an absolute fee not limited with the required amount of certainty by the attempted qualifying clause, or (2) a fee with a condition attached thereto, which violates § 85-903 of the Code, and is therefore void, or (3) a fee or estate with full power of disposition. The judge did not expressly rest his decision on any particular one of the three stated grounds, but indicated in his judgment that the most logical view is that Item 4 of the testator's will created a base fee with a legal limitation which was properly complied with, and the exception here is to that judgment only.

Thomas A. Jacobs, Jr., Macon, Jas. C. Estes, Macon, for plaintiff in error.

Jones, Jones & Sparks, Macon, Carlisle & Bootle, Macon, Walter J. Grace, Macon, for defendants in error.

CANDLER, Justice (after stating the foregoing facts.)

The parties agree that the record presents for decision these questions:

(a) Did Item 4 of the will of Willis Braswell Jr. vest in his widow, Aneuretta Braswell, a fee-simple estate or a lesser estate?

(b) If Aneuretta Braswell took less than a fee-simple estate under Item 4 of her husband's will, did she by her will dispose of the property bequeathed to her during her lifetime?

(c) Was the right to receive the distributive share of Willis Braswell Jr. from the executor of Willis Braswell Sr. an interest in realty or personalty on June 2, 1937, the date of Aneuretta Braswell's death, the estate of Willis Braswell Sr. consisting, at that time, of both realty and personalty?

And that all of these questions may be summarized into one: Does the distributive share of Willis Braswell Jr. in the estate of his father, Willis Braswell Sr., pass to Willis Braswell Sheftall under the wills of Willis Braswell Jr. and Aneuretta Braswell, or to the sisters and brother of Willis Braswell Jr. under Item 4 of his will?

1. We will first determine the character of the estate created by Item 4 of Willis Braswell Jr.'s will, Willis Braswell Sheftall insists that the testator by Item 4 devised to his widow, Aneuretta Braswell, an absolute fee-simple estate in all of the property which he was entitled to take under the will of his father, and that the estate so created and vested thereby was not cut down by any legal limitation therein. On the other hand, it is contended that it vested in her only a defeasible fee subject to an executory limitation or devise over in favor of the testator's sisters and brother as named in his will, and upon failure of the testator's widow to dispose of the property so devised during her lifetime or, in other words, by an inter vivos conveyance, the executory devise operated to vest fee-simple title in the executory devisees. 'An absolute or fee-simple estate is one in which the owner is entitled to the...