Sanders v. First Nat. Bank

• Decision Date: 16 November 1939
• Docket Number: 12997.
• Citation: 6 S.E.2d 294,189 Ga. 450
• Parties: SANDERS et al. v. FIRST NAT. BANK OF ATLANTA et al.
• Court: Georgia Supreme Court

6 S.E.2d 294

189 Ga. 450

SANDERS et al. v. FIRST NAT. BANK OF ATLANTA et al.

No. 12997.

Supreme Court of Georgia

November 16, 1939

Judgment Adhered to on Rehearing Dec. 15, 1939.

Syllabus by the Court.

1. Under a will devising to a trustee property from which the trustee is to pay the income to the testator's widow for her life, and after her death to his children until they respectively arrive at designated ages (later than the age of twenty-one years), when the estate is to be delivered to them according to their respective shares, but providing that if a child should die before receiving his share it should go to his children if he left any, and to his surviving colegatees if he died childless, each child took, as of the date of the death of the testator, a vested equitable remainder estate in fee, subject to defeasance upon his dying before arriving at the designated age, with a valid executory devise contingently existing in the meantime in favor of those who were to take upon his failure to survive the period.

2. Where it appears that the widow is still living, but has conveyed all her rights in the trust estate to the children and that the children are above the age of twenty-one years but it does not appear that any of them have arrived at the minimum age on which the defeasibility of the remainder estates is to end, no such merger of estates takes place as the result of the widow's conveyance to the children as will convert the defeasible estates of the children into alsolute estates; and, despite such a conveyance, the contingent rights of the executory devisees are not extinguished.

3. A trust wherein the estate of the beneficiary is a defeasible fee, with an executory devise in favor of others limited thereon, does not become an executed trust by the arrival of the beneficiary at the age of twenty-one years and by the fact that he is under no legal disabilities, but the trust continues to be executory until the time when the contingency on which the beneficiary's estate is defeasible is no longer capable of operating to defeat it.

Maryin G. Russell and Reuben A. Garland, both of Atlanta, for plaintiffs in error.

Brandon, Hynds & Tindall, Gordon F. Mitchell, and Mitchell & Mitchell, all of Atlanta, for defendants in error.

REID Chief Justice.

This case relates to the provisions of a will made in 1921 by Lucien B. Sanders, who died in 1922. The plaintiffs are all the children of the testator; and they are now sui juris. The defendants are the First National Bank of Atlanta as trustee (by succession) and all the children of the plaintiffs; that is, all the grandchildren of the testator. The item of the will under which the case arises is as follows: 'I give, devise, and bequeath all the rest, residue, and remainder of my property of whatsoever character and wheresoever situated to the Fourth National Bank of Atlanta as trustee, in trust for the following uses and purposes: The net income from my estate shall be paid by said trustee to my said wife Julia Dickinson Sanders, during her life or widowhood. If my wife should remarry, she is to have the income from one fifth of my property during her life. After the death of my wife, the entire net income from four fifths of my estate shall go to my children, Lucien B. Sanders, Jr., Roger Q. Sanders, Dickinson H. Sanders, and Julia Sanders, share and share alike; until the final distribution of my estate as hereinafter set out. If any of said children should die leaving a child or children, such child or children shall take the income that would have gone to such child or children's parent if living, the descendants of my children to take per stirpes. Where any of my children have received a part or all of the estate going to them under the following provisions of this will, the income payable to such child shall be proportionately abated. After the death of my wife, my estate shall be disposed of by said trustee in the following manner: If and when each of my said children reaches the age of thirty years, he or she shall receive one eighth of my estate. If and when each of my said children reaches the age of thirty-five years, he or she shall receive an additional one eighth of my estate. If any of my said children should die before receiving his or her share of my estate, and without leaving a child or children, the share that such deceased child would have taken in my estate if he or she had lived to become thirty and thirty-five years of age, as above set out, shall go to the survivors, share and share alike, and be distributed in the manner provided above. If any of my said children should die before receiving his or her share of my estate, leaving a child or children, such child or children shall, upon reaching the age of twenty-one years, take the share of my estate that would have gone to such deceased parent if such deceased parent had lived to become thirty-five years of age. In the event my wife remarries, four fifths of my estate shall be distributed in the manner and upon the conditions set out above, and the remaining one fifth shall be held by said trustee and the income paid to my wife during her life, and after death the corpus shall likewise be distributed in the manner and upon the conditions set out above, and the remaining one fifth shall be held by said trustee and the income paid to my wife during her life, and after her death the corpus shall likewise be distributed in the manner and upon the conditions set out above.'

The petition alleges, that testator's widow is still living and has never remarried; and that in 1938 she conveyed to the plaintiffs her entire life estate in all the property bequeathed and devised in the item of the will quoted above, and that as the result of this conveyance a merger of estates resulted, that they acquired a fee-simple title with present right of possession, and that the trust has become executed. It is not alleged that any of the plaintiffs have arrived at the age of thirty years. The object of the action is to have the trust declared executed and to recover the property from the trustee. The judge dismissed the petition on general demurrer.

1. It will clarify subsequent discussion to determine first the nature of the estate taken by the plaintiffs under the will. It is a remainder, or course, as enjoyment is postponed in favor of the prior particular estate granted the widow. Code, § 85-701. The gift to the widow is a gift of the income for life, but that is the equivalent of an estate for life. § 113-805; Thomas v. Owens, 131 Ga. 248, 255, 62 S.E. 218. The estate in remainder is an estate in fee, since no lesser estate is mentioned and limited in respect of the grant to the remaindermen. Code, § 85-503. 'The law favors the vesting of remainders in all cases of doubt. In construing wills, words of survivorship shall refer to the death of the testator in order to vest remainders, unless a manifest intention to the contrary shall appear.' § 85-708. If the estate in remainder be a defeasible fee, the law favors the construction which makes the fee absolute at the earliest time consistent with intent of the testator, as expressed in the will. Bailey v. Ross, 66 Ga. 354; Crumley v. Scales, 135 Ga. 300, 308, 69 S.E. 531; Munford v. Peebles, 152 Ga. 31, 108 S.E. 454; Moore v. Cook, 153 Ga. 840, 113 S.E. 526; Johnson v. Johnson, 158 Ga. 534, 124 S.E. 18; Comer v. Citizens & Southern National Bank, 182 Ga. 1, 185 S.E. 77. In the item which we have quoted are two clauses relating to survivorship: 'If any of said children should die leaving a child or children,' near the beginning of the item and later, 'If any of my said children should die before receiving his or her share of my estate,' etc. The words of survivorship in the first of these clauses relate to the death of the testator. Code, § 85-708; Comer v. Citizens & Southern National Bank, supra; Bryant v. Green, 187 Ga. 89, 199 S.E. 804. Usually the object of such clauses is to provide a substitutionary or alternative legatee to take in the place of the original legatee in the event the latter does not survive the testator, and thereby to provide against intestacy through the lapse of the legacy by reason of the death of the designated legatee. At common law and under the law of this State before the act of 1836 (Code, § 113-812), if the legatee died before the death of the testator the legacy lapsed, whether the legatee left issue or not. Now, if there be issue, it takes as substituting legatee. See Cooper v. Harkness, 188 Ga. 121, 2 S.E.2d 918. So such clauses, while practically not necessary in many cases, are sometimes useful. The words 'If any of my children should die before receiving his or her share of my estate' cannot be related to the death of the testator, because a different intent is manifestly indicated. Under the context in which these words appear, they manifestly relate to the time when the legatee arrives at the age designated in the will when he shall receive a share of the estate. At first blush, it might seem that if he died before the widow did, even though he had arrived at the designated age, his title to the share of the estate which would go to him on his arrival at that age would be divested in favor of his children or the survivors, if he left no children, but such a construction would not be consistent with the rule that the estate vests indefeasibly at the earliest possible moment consistently with the manifestly expressed intent of the testator. See Bailey v. Ross, and the other cases cited above.

Therefore we hold that the remainders granted to the plaintiffs are vested remainders in fee; but that the fees so taken are defeasible entirely if the legatee dies before arriving at the age of thirty years, and as to one half...