Raines v. Duskin

• Decision Date: 15 April 1981
• Docket Number: No. 37055,37055
• Citation: 277 S.E.2d 26,247 Ga. 512
• Parties: RAINES, Exr. et al. v. DUSKIN et al.
• Court: Georgia Supreme Court

Page 26

277 S.E.2d 26

247 Ga. 512

RAINES, Exr. et al. v. DUSKIN et al.

No. 37055.

Supreme Court of Georgia.

April 15, 1981.

W. L. Ferguson, Dawson, William B. Gunter and Patrick G. Jones, Kilpatrick & Cody, Atlanta, for James G. Raines, Exr., et al.

G. Stuart Watson and Mark Gonnerman, Albany, for Theodosia Hollingsworth Duskin et al.

GREGORY, Justice.

This case arises from a petition seeking construction of certain provisions of the will of Theodosia Stewart Griggs (hereinafter "Mrs. Griggs") who died testate on December 7, 1940, and of the will of her daughter Augusta Griggs Raines (hereinafter "Mrs. Raines") who died testate on November 15, 1977.

Items 4, 5, 6, 7, 8 and 9 of the will of Mrs. Griggs provide:

(Item 4)

"I will, bequeath and devise to Edgar Hollingsworth the Home located on Seventh Avenue, in Dawson, Terrell County, Georgia, in which he now lives with his second wife, Gladys Griggs Hollingsworth, for his lifetime, with the remainder to my Grand-daughter, Nancy Stewart Griggs, the only daughter of my beloved son, Daniel Stewart Griggs and Gladys Griggs Hollingsworth."

(Item 5)

"I will, bequeath and devise all of my personal effects to my daughter Augusta Griggs Raines and my Grand-daughter, Theodosia Hollingsworth Duskin."

(Item 6)

"I will, bequeath and devise all of my farm lands located in Terrell and Randolph Counties, State of Georgia, and all personal property located thereon, including cattle, stock, farm implements and tools, except as is hereinafter provided, into three equal parts; one-third to my daughter, Augusta Griggs Raines; one-third to Theodosia Hollingsworth Duskin and her bodily heirs; one-third to Edgar Hollingsworth, for his lifetime, but charged with the maintenance, support and education of his (step) daughter, Nancy Stewart Griggs, during his lifetime, with the remainder to Nancy Stewart Griggs, my Grand-daughter. I specifically bequeath and devise the Old Home Place or Residence, where I was born, together with all appurtenances thereon, located on the Old Stewart Place in Randolph County, Georgia, to Augusta Griggs Raines and Theodosia Hollingsworth Duskin, the same to be charged to their one-third pro rata share in the division of my farm lands. I will and bequeath that the Stewart Place in Randolph County, Georgia, containing Three Thousand (3,000) acres of land, more or less not be divided until the lien or indebtedness, which is now on this land, be paid off in full and satisfied."

(Item 7)

"I will, bequeath, and devise the Stewart Building on the South side of Main Street, and at the intersection of Main and Lee Streets, in Dawson, Terrell County, Georgia, to my daughter, Augusta Griggs Raines and Theodosia Hollingsworth Duskin, jointly."

(Item 8)

"I will, bequeath and devise One (1) Brick Building, located on the North Side of Lee Street, in Dawson, Terrell County, Georgia, a part of the lower floor of said building now occupied by E. J. Pace, and the upper floor of which is now occupied by Dr. Steve P. Kenyon, to Edgar Hollingsworth, for and during his lifetime, with remainder to Nancy Stewart Griggs, my Grand-daughter."

(Item 9)

"I will and desire, that if any of my legatees die without leaving bodily heirs, that their property revert to my estate, to be equally divided between the other legatees named in this my will, or their representatives."

In 1941, the Terrell County Farmlands referred to in Item 6 of Mrs. Griggs' will were sold in order to pay the outstanding debts of her estate. In 1943 the Randolph County property referred to in Item 6 of the will was partitioned, with approximately one-third awarded to Edgar Hollingsworth and Nancy Stewart Griggs, and approximately two-thirds awarded to Augusta Griggs Raines and Theodosia Hollingsworth Duskin, jointly.

Mrs. Raines died in November of 1977, survived by her son, James G. Raines, and by Theodosia Hollingsworth Duskin and her two sons. Item 16 of Mrs. Raines' will reads as follows:

"I will, bequeath, and devise it to be my will and desire that MRS. THEODOSIA H. DUSKIN and her sons J. W. DUSKIN, JR. and E. (W) DUSKIN, shall have in fee simple title that part of the property which I have had that was the property of my mother, MRS. THEODOSIA STEWART GRIGGS, consisting of: (a) the farm in Randolph County, Georgia, and (b) the part of the brick building and lot located at the southeast corner of Main Street and Lee Street in Dawson, Georgia, a part of which is now as of this date occupied by the Dawson Pharmacy; and I request and direct that my son, JAMES GRIGGS RAINES, if in life at the time of my death, carry out and perfect my will and desire that MRS. THEODOSIA H. DUSKIN and her sons. J. W. DUSKIN, JR. and E. (W) DUSKIN, shall have the fee simple title to the property described and set forth in this ITEM 16 of this my LAST WILL AND TESTAMENT."

Mrs. Raines' will also provided that the residue should go to her son, James G. Raines, if living at her death; and provided that he be named executor if living at her death, and if not, or if he refused to serve, that Theodosia H. Duskin be named executrix.

James G. Raines (hereinafter "appellant") qualified as executor and is now engaged in the administration of Mrs. Raines' estate.

Appellant takes the position that the will of his grandmother, Mrs. Griggs, had conveyed to his mother, Mrs. Raines, only a life estate in the property referred to in Items 6 and 7 of the Griggs' will and in Item 16 of the Raines' will and that this property (hereinafter "disputed property") was not part of his mother's estate, but passed to him as a remainderman by the Griggs' will.

Theodosia Hollingworth Duskin and her two sons (hereinafter "appellees") contend that the Griggs' will conveyed the disputed property to Mrs. Raines subject to defeasance should Mrs. Raines die without leaving bodily heirs. Since Mrs. Raines died leaving a bodily heir the defeasible fee was converted into a fee simple, and thus the disputed property was part of Mrs. Raines' estate and passed to appellees under Item 16 of her will.

Aside from the nature of the estate originally conveyed to Mrs. Raines, an additional issue presented below was whether or not the language of Item 16 of the Raines' will was precatory in nature, and, in that connection, whether or not a devise was intended. We first address the construction of the Griggs' will.

(1) All parties concede that the conveyances to Mrs. Raines in Items 6 and 7 of the Griggs' will were limited by the provisions of Item 9 of that will.

Appellant's contention that Mrs. Raines enjoyed only a life estate in the disputed property is based primarily on that portion of Code Ann. § 85-505 which states:

"Limitations which, by the English rules of construction, would create an estate tail by implication, shall give a life estate to the first taker, with remainder over in fee to his children and their descendants, as above provided; and if none is living at the time of his death, remainder over in fee to the beneficiaries intended by the maker of the instrument."

Appellees contend that because of certain language in Code Ann. § 85-506, the above quoted portion of § 85-505 will never be reached, and that the Georgia Supreme Court has, in every instance in which the issue was before it, held that language such as is contained in Item 9 of the Griggs' will conveys a defeasible fee.

Appellant responds that in none of those cases did the Georgia Supreme Court consider Sections 85-505 and 85-506 in their "unitary context," and that this is a case of first impression in this state.

These code sections and the issues raised by them in this case can be understood only in light of historical events dating back to the thirteenth century.

Our present law of real property had its origins in the feudal system. Originally, land was granted by the lord as compensation for personal services, and the grant was for life only. As the law evolved, some conveyances extended beyond the life of the original grantee, and a conveyance to "A and his heirs" passed a fee simple estate, "heirs" becoming a word of limitation describing the nature of the estate conveyed. By the thirteenth century, the owner of an estate in fee simple had acquired a substantially free power of alienation.

The great landowners, for various reasons having to do with the nature of the feudal system as it then existed, wanted to be able to convey a fee restricted to the lineal descendants of a grantee. Conveyances began to appear with the words of limitation narrower than "heirs", such as "to A and the heirs of his body." By 1250, the English courts had judicially construed such words to convey a "fee simple conditional." The result of this construction was that as soon as such a grantee had any issue born, he could convey his estate in fee simple, which he usually did to prevent any possibility of a later reversion, afterwards repurchasing the land to hold it in fee simple absolute. Tiffany, The Law of Real Property, § 34 (3rd Ed. 1939). Redfearn, Wills and Administration in Georgia, § 170, p. 445 (3rd Ed. 1965).

The feudal landowners were dissatisfied with the court's bias in favor of freedom of alienation, and in response to their desires the Statute of Westminster II (also known as the Statute De Donis Conditionalibus) was passed in 1285.

This statute provided,

"... that the will of the giver, according to the form in the deed of gift manifestly expressed shall be from henceforth observed, so that they to whom the land was given under such condition shall have no power to aliene the land so given, but that it shall remain unto the issue of them to whom it was given after their death or shall revert unto the giver and his heirs if issue fail either by reason that there is no issue at all, or if any issue be, it fail by death, the heir of such issue failing." 2 Powell on Real Property, § 193, p. 63 (Rev.Ed.1977).

Following the enactment of this statute, a conveyance "to A...