Johnson v. Wishard, 26327

• Decision Date: 04 March 1971
• Docket Number: No. 26327,26327
• Citation: 227 Ga. 355,180 S.E.2d 738
• Parties: William Elbert JOHNSON et al. v. Burr T. WISHARD.
• Court: Georgia Supreme Court

Page 738

180 S.E.2d 738

227 Ga. 355

William Elbert JOHNSON et al. v. Burr T. WISHARD.

No. 26327.

Supreme Court of Georgia.

March 4, 1971.

Smith & Hargrove, William E. Smith, Americus, for appellants.

Jesse Bowles, Cuthbert, W. L. Ferguson, Dawson, for appellee.

Syllabus Opinion by the Court

UNDERCOFLER, Justice.

1. The first issue in this case requires a construction of the will of Laura Eugenia Smallpiece.

The testatrix devised to four of her daughters, 'Leila, Katie, Effie and May Bell,' the use of the property here in issue 'so long as any of such daughters remain unmarried.'

The testatrix then provided, 'Item Second. At the death of said four daughters, or when each and every of them shall have married, then I will and direct that said property as hereinabove described except any personal property previously disposed of by them under the provisions of item first of this will, shall descend to and be in order for division among my six children, to-wit: Leila, Katie, Effie, and May Bell Smallpiece and Mrs. Sallie Wishard and Mrs. Lora Johnson, and if any of them dead, their lineal descends (sic) to stand in their stead.'

All six children survived the testatrix. All of the children married except Leila and Effie. Leila died testate in 1949 leaving her interest in said property to Effie for life with remainder to James Burrell Wishard. Effie died testate in 1968 leaving her interest in said property to Leila for life with remainder to James Burrell Wishard.

The appellants contend that the six children took either (1) contingent remainders as to the person or (2) vested remainders subject to divesting upon their deaths without lineal descendants. Appellants claim that upon Effie's death in 1968 the property vested in the one living daughter and the children of three deceased daughters.

The appellee contends that each of the six children took absolute vested interests in said property at the death of the testatrix and he, as sole heir of James Burrell Wishard, is entitled to the 2/6ths interest of Leila and Effie.

We agree with the trial court's judgment finding in favor of the appellee's contentions.

The vesting of remainders is favored. Code § 85-708. A remainder is vested if it is subject to no condition precedent save the termination of the preceding estate. Here the remainder is subject to no condition except the termination of the previous estate by the marriages or deaths of the life tenants. McKain v. Allen, 214 Ga. 820, 108 S.E.2d 319, 73 A.L.R.2d 479. The phrase 'and if any of them dead, their lineal descends (sic) to stand in their stead,' is not sufficient to support the argument that the testatrix intended that the remaindermen were to survive the life tenants in order to take. Johnston v. Duncan, Ga., 180 S.E.2d 348. Crossley v. Leslie, 130 Ga. 782(5), 61 S.E. 851; Gay v. Graham, 218 Ga. 745, 130 S.E.2d 591. See 13 Ency. of Ga.Law, Future Interests (Agnor) 249, § 26. In our opinion the testatrix viewed the devise as a class gift and inserted this phrase to avoid the effect of Georgia's minority view that our anti-lapse statute (Code § 113-812) does not apply to class gifts. Renney v. Kimberly, 211 Ga. 396, 86 S.E.2d 217.

Under our holding in this case, it is not necessary to distinguish between contingent remainders and vested remainders subject to divesting. 'In a large number of cases in which the discussion proceeds as if the problem were merely whether the remainder is vested or contingent, the real question involved is simply whether there is a requirement that a certain devisee must survive until his interest becomes possessory; it being conceded that he has not so survived. In many of such cases the whole discussion of the distinction is irrelevant, because exactly the same result would be reached if the remainder in question were treated as contingent or as vested subject to complete defeasance on the death of the remainderman before the termination of the particular estate. Thus, in a limitation to A...