Owens v. Davis, 24509

• Decision Date: 07 March 1968
• Docket Number: No. 24509,24509
• Citation: 224 Ga. 146,160 S.E.2d 352
• Parties: H. D. OWENS, Jr. v. Mary Exa Willets DAVIS.
• Court: Georgia Supreme Court

Page 352

160 S.E.2d 352

224 Ga. 146

H. D. OWENS, Jr. v. Mary Exa Willets DAVIS.

No. 24509.

Supreme Court of Georgia.

March 7, 1968.

Syllabus by the Court

Where a remainder is limited to an event, whether it be a necessary event or one that may not happen, and not limited to an uncertain person, and the remainderman dies before the time to receive the estate, his heirs shall be entitled to a contingent remainder interest. The heirs or assigns of such remainderman will, upon the happening of the event, share equally with the other surviving contingent remainderman.

While this is a partitioning of land case it also involves the construction of a will probated in 1918 upon the death of the testator which is the basis of the declaration of rights of the parties by the trial court. The paragraph of the will in question reads as follows: 'I, J. P. Owens, now in my right mind do will to my wife, S. E. Owens, * * * (the described property) * * *, and at her death to Lillar Thrash's children, if she dies and leaves no children to go to H. D. Owens children.' Mrs. S. E. Owens died in 1943. Lillar Thrash died in 1964 without having had any children. H. D. Owens had two children survive him, Emma Frances Owens and H. D. Owens, Jr. However, Emma Frances Owens died in 1937, leaving a husband, L. B. Willets, and a daughter, Mrs. Mary Exa willets Davis, as her only heirs. L. B. Willets quitclaimed any interest he might have inherited to his daughter, Mrs. Davis, and she brought this action for partitioning against H. D. Owens, Jr., alleging that as tenants in common, each owns an undivided one-half interest in the property. The defendant answered praying for a declaratory judgment that he had inherited the entire property under the will upon the death of Lillar Thrash without children. After a hearing, the court ruled in favor of the petitioner, awarding each a 50 percent interest in the property and appointed commissioners to partition the land. The appeal is from this judgment.

Richter & Birdsong, Horace E. Richter, Ketzky & Hipp, Loeb Ketzky, LaGrange, for appellant.

Lovejoy, Mayer, Allen & Quillian, H. T. Quillian, Jr., LaGrange, for appellee.

DUCKWORTH, Chief Justice.

Perhaps much confusion in the decisions of this court has arisen because of the failure to understand clearly the true meaning of both Code § 85-703, which merely defines a vested remainder and a contingent remainder, and Code § 85-704, which confers rights upon the heirs of a remainderman who dies before the time arrives for possessing his estate. The latter section first says, 'his heirs shall be entitled to a vested-remainder interest,' and this could be true only in cases of vested remainders. But it then states his heirs are entitled to 'a contingent-remainder interest when the contingency is not as to the person but as to the event.' This means that the 'chance' held by the remainderman, and not the property, vests in the heirs of such remainderman upon his death...