Johnston v. Duncan, 26260

• Decision Date: 15 February 1971
• Docket Number: No. 26260,26260
• Parties: Eva J. JOHNSTON et al. v. R. F. DUNCAN et al.
• Court: Georgia Supreme Court

Page 348

180 S.E.2d 348

227 Ga. 298

Eva J. JOHNSTON et al. v. R. F. DUNCAN et al.

No. 26260.

Supreme Court of Georgia.

Feb. 15, 1971.

Stark & Stark, Homer M. Stark, Lawrenceville, for appellants.

R. F. Duncan, Lawrenceville, Smith & Harrington, Will Ed Smith, Eastman, A W. Franklin Bloodworth, Hansell, Post, Brandon & Dorsey, Jefferson D. Kirby, III, Atlanta, Glyndon C. Pruitt, Buford, for appellees.

Syllabus Opinion by the Court

UNDERCOFLER, Justice.

This case involves the construction of a will. The appeal is from the trial court's order granting certain motions for summary judgment and denying others as will appear in the opinion. Held:

1. Appellants complain that, 'The trial court erred in construing Item 5 of the will of Georgia E. J. Jones to create a life estate in James M. Jones, with a vested reversionary interest in each of the five children of the testatrix living at the time of her death, said vested reversionary interest subject to being divested should James M. Jones die leaving children.' This issue was decided in Webb v. Jones, 221 Ga. 754, 146 S.E.2d 910 contrary to the trial court's judgment in the instant case. Regardless of the correctness of that decision, it cannot be relitigated. Heard v. Perkins, 189 Ga. 402, 404(1), 5 S.E.2d 773; Lankford v. Holton, 196 Ga. 631, 27 S.E.2d 310; Code § 110-501. The defense of res judicata was plead and proved in the trial court.

For this reason, the summary judgments granted by the trial court which apportion the estates devised in Item 5 differently from the holding in Webb v. Jones, supra, are erroneous.

2. Appellants complain that, 'The trial court erred in construing Item 6 of the last will and testament of Georgia E. J. Jones as creating a life estate in Daisy F. Johnston followed by a life estate in W. D. Johnston with a vested reversionary interest in each of the five children of Georgia E. J. Jones living at the time of her death, said vested reversionary interest subject to being divested should Daisy F. Johnston die leaving children.'

Item 6 provides: 'I give to my daughter, Daisy F. Johnston, for and during her natural life, and at her death to her children fifty acres of land * * * (description omitted). Should the said Daisy F. Johnston die without issue, then said land is hereby given to her husband W. D. Johnston, for and during his natural life and at his death, said land is to revert to my estate or to me, and then to be divided equal with my children share and share alike, and if any of my children are then dead, then the part that would have gone to them is to go to their children equally.'

Daisy F. Johnston survived the testatrix and predeceased her brother and three sisters in 1949 without ever having children. She was survived by her husband, W. D. Johnston, who died in 1969.

Appellants argue that the remainder estate vested at the death of W. D. Johnston in the testatrix' children living at the death of W. D. Johnston and in the children of the testatrix' children who predeceased W. D. Johnston. We do not agree.

The devises in Item 6 are generally denominated alternative contingent remainders or remainders on a contingency with a double aspect. Mitchell, Real Property (1945) pp. 257-259; Restatement of the Law, Property, Future Interests (1940), Vol. III, pp. 1436-1439, § 278; 4A Thompson on Real Property 490, § 1996. The contingency is the death of the first life tenant dying without issue. Olmstead v. Dunn, 72 Ga. 850, 861. The contingency, namely dying without issue, is an event. Owens v. Davis, 224 Ga. 146, 160 S.E.2d 352.

Therefore all the children including the life tenant, Daisy F. Johnston, had remainder estates which were transmissible. Code § 85-704; Morse v. Proper, 82 Ga. 13, 8 S.E. 625; Crawford v. Clark, 110 Ga. 729, 738, 36 S.E. 404; Wiley v. Wooten, 140 Ga. 16, 78 S.E. 335.

The life tenant may also take a remainder interest. Schriber v. Anderson, 205 Ga. 343(3), 53 S.E.2d 490.

The portion of Item 6 stating, '* * * and if any of my children are then dead, then the part that would have gone to them is to go to their children equally' will not support a conclusion that the remainder was contingent as to the person. Crossley v. Leslie, 130 Ga. 782(5), 61 S.E. 851; Gay v. Graham, 218 Ga. 745, 130 S.E.2d 591. See Britt v. Fincher, 202 Ga. 661, 44 S.E.2d 372. Fourth National Bank of Columbus v. Brannon, 227 Ga. 191...