The City Council Of Augusta v. Radcliffe

• Decision Date: 28 February 1881
• Citation: 66 Ga. 469
• Parties: The City Council of Augusta. vs. Radcliffe et al.
• Court: Georgia Supreme Court

66 Ga. 469

The City Council of Augusta. vs. Radcliffe et al.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1881.

[Crawford, Justice, being related to the defendants in error, did not sit in this case. Judge Simmons, of the Macon circuit, was designated by the governor to preside in his place.]

Tenants. Estates. Remainder. Statute of limitations. Before Judge pottle. Richmond Superior Court. October Adjourned Term, 1880.

Reported in the decision.

J. S. & W. T. Davidson; M. P. Carroll; Jackson & Lumpkin, for plaintiff in error.

Barnes & Cumming; Willis A. Hawkins; Harrison & Peeples, for defendants.

Simmons, Judge.

This was an action of ejectment brought in the statutory form by James Radcliffe et al. against the city council of Augusta for a certain lot in said city.

By agreement of the parties the case, was submitted to the Hon. E. H. Pottle, Judge of the superior courts of the Northern Circuit, who was to pass upon both the law and facts of said case. The trial was had before him at the October adjourned term of Richmond superior court, and he rendered a judgment for the plaintiffs in said action for the lot of land sued for, to which judgment the defendant excepted and assigned the same as error, and it is now before us on a writ of error for review.

It appears from the record in said case that in the year 1847 John P. King, as president of the Georgia Railroad and Banking Company, sold to John D. Ramey the premises in dispute "in trust forever, for the sole and separate use of the said Ann L. Finn, wife of John Finn, during her coverture, and if she survives the said John Finn, during her widowhood or natural life, and at her death, or the termination of her widowhood by marriage, whichever shall first happen, the premises hereby conveyed shall go to and vest in the child or children of the said John and Ann L. Finn then in life; and in case of the death of any such child during the life 0f widowhood of the said Ann L, leaving issue alive, such issue shall take in place of such child; and in case any such child or issue of a child so entitled to said property be female, said John D. Ramey shall hold the part or portion of such child or issue of a child, or both, as the case may be, in trust for her or their sole and separate use, not liable to the control or disposal of, nor for the debts of, any husband of such child or issue of a child.

And upon this further trust that the said John D. Ramey may, by and with the consent and approbation of the person or persons for whose use he may, at any time, hold said property, without the order or decree of any court, sell and dispose of said property and re-invest the proceeds of such sale in other property, real or personal, upon the trust hereinbefore declared and no other."

In the year 1857 Ramey, the trustee, with the consent and approbation of Mrs. Finn, sold and conveyed a part of this lot to the defendant, the city council of Augusta, and the part so conveyed is the premises in dispute.

Mrs. Finn had but one child during her coverture with John Finn, Mary E. Finn, who intermarried with Willis A. Hawkins in 1854, she being then in the twenty-second year of her age. She died in 1867, leaving surviving her six minor children. The eldest, Mary, intermarried with James Radcliffe, and she and the others were the plaintiffs in the action below. Mrs. Radcliffe died after the suit was brought, leaving her husband and an infant son, who were made parties in her place.

Mrs. Finn survived her husband, and died a widow in June, 1876, leaving said grandchildren, all of whom were minors at her death, except Mrs. Radcliffe, who was then twenty-three years old.

In 1858 Ramey, the trustee, resigned and Musgrove was appointed in his place. Mrs. Hawkins and her husband and Mrs. Finn united in the petition to the court asking the acceptance of Ramey's resignation and the appointment of Musgrove.

In this petition was recited the purchase of this property from the Georgia Railroad, and the sale of this property to the city of Augusta.

Afterwards, in 1860, a similar petition was made by the same parties to the court to accept the resignation of Musgrove and the appointment of Mrs. Finn as trustee in his place.

In this petition the same recitals as to the deeds, trusts and sales were made as in the first petition.

Upon this state of tacts, the court below rendered judgment for the plaintiffs for the premises in dispute. The defendant excepted and assigned the same as error. The question before us is was that judgment right? Was it authorized by law under the evidence in the case?

1. In order to determine the question we must first ascertain what estate passed from the grantor under this deed to Mrs. Finn, and second, what was the kind of remainder created in said deed? The property is given by the deed to Mrs. Finn for her sole and separate use, for and during her natural life or widowhood. An estate for life or widowhood is a life estate. This, then, was a life estate in Mrs. Finn. What kind of remainder was created in said estate at the termination of her life estate? Was it a vested or contingent remainder? The deed provides that, " at the death or marriage of Mrs. Finn, the property shall go to and vest in the child or children of the said John and Ann L. then in life, and in case of the death of such child during the life or widowhood of Mrs. Finn, leaving issue alive, such issue shall take in place of such child." This does not constitute a vested remainder, because in a " vested remainder there is some person in esse, known and ascertained, who, by the will or deed creating the estate, is to take and enjoy the estate upon the expiration of the existing particular estate, and whose right to such remainder no contingency can defeat." 2 Washburn on Real Property, 502, 3d Ed.; Code, §2265. In the case under consideration the person who was to take this remainder was not known and ascertained. It was to go to and vest in Mrs. Hawkins, the only child of Mrs. Finn, in the event she survived her mother, the life, tenant. If she died before her mother (which she did do), then it was to go to her child or children. The time when the remainder was to vest was certain, to-wit, upon the death of Mrs. Finn; but the person who was to take at that time was uncertain. Mrs. Hawkins' right to take depended upon her surviving her mother. If she diedfirst, it still depended upon her leaving issue alive. It is clear, therefore, that the person who was to take, after the termination of the life estate, was uncertain, unknown and unascertained.

A contingent remainder is one limited to an uncertain person, or upon an event which may or may not happen. Code, §2265; 2 Washburn on Real Property; Williams on Real Property; 2d Minors' Institutes; Griswold vs. Greer, 18 Ga., 545. We think, therefore, it is clear that Mrs. Finn had a life estate...