Walker v. Bogle

• Citation: 244 Ga. 439,260 S.E.2d 338
• Decision Date: 16 October 1979
• Docket Number: No. 34918,34918
• Parties: WALKER et al. v. BOGLE et al.
• Court: Georgia Supreme Court

Page 338

260 S.E.2d 338

244 Ga. 439

WALKER et al. v. BOGLE et al.

No. 34918.

Supreme Court of Georgia.

Submitted May 18, 1979.

Decided Oct. 2, 1979.

Rehearing Denied Oct. 16, 1979.

Michael Mears, R. Michael Souther, Atlanta, for appellants.

Gray, Hinson & Weyant, John E. Hill, Atlanta, for appellees.

HALL, Justice.

Jeanette C. D. Bogle died testate in 1978, survived by two sons who have no children. Her will provided that her residuary estate be placed in trust and divided into Fund A and Fund B one fund for each son. The provisions for each fund are identical. The son is to receive the income for life. At his death, the fund is to be divided into shares per stirpes for the son's then living lineal descendants. The descendants are entitled immediately to receive the income from their respective shares and to receive the principal when they reach age 30. The trustee has discretionary power to invade the principal for the beneficiary's support. If a trust beneficiary dies after the trust fund is divided into shares but before reaching age 30, his share is to be distributed to his lineal descendants, if any, and if none, the share is to be added to the shares of the other beneficiaries. If a son dies leaving no lineal descendants, the assets of his trust fund are to be added to the other son's fund and administered under its provisions. If no trust beneficiaries exist for both Funds A and B, the trust property is to be divided equally between the Nature Conservancy and Mount Holyoke College.

Testatrix' sons (appellees) brought a declaratory judgment action seeking to have the disposition of the residuary estate declared violative of the rule against perpetuities and the property freed of the trust. The trial court found that the remainder to the son's lineal descendants is, as yet, a contingent remainder which will vest upon the birth of a descendant but is subject to divestment if the descendant fails to reach age 30. If the remainder is divested, the trial court found that the gifts over to the beneficiary's descendants or to other trust beneficiaries are executory interests which violate the rule against perpetuities. The trial court also held that the gift over to charity is an executory interest which violates the rule against perpetuities. Because of these violations of the rule, the trial court viewed testatrix' dispositive plan as destroyed and declared the entire trust void through the doctrine of "infectious invalidity." Thomas v. C. & S. Nat. Bank, 224 Ga. 572, 163 S.E.2d 823 (1968). Under this decision, the entire residuary estate passes through intestacy to the testatrix' sons in fee simple. We reverse.

1. Each of the interests created by testatrix after giving a life estate to her sons presents a problem under the rule against perpetuities. The rule against perpetuities is a rule against remoteness of vesting of interests. Burt v. Commercial Bank, etc., Co., 244 Ga. 253, 260 S.E.2d 306 (1979). An interest is invalid unless it must vest, if at all, not later than twenty-one years plus actual periods of gestation after a life in being at the creation of the interest. Code Ann. 85-707(a); Reeves v. Comfort, 172 Ga. 331(2), 157 S.E. 629 (1931). In this case, testatrix' sons were the lives in being at the time of her death when the testamentary trust was created. All future estates must, therefore, vest within their lifetimes plus twenty-one years in order to be valid.

Upon the death of the son, the trust corpus is to be divided into shares "per stirpes to my said son's then living lineal descendants." The trial court concluded that the remainder to the lineal descendants is now contingent but will vest when the son has a child. This construction gives no effect to the requirement that the trust corpus be divided into shares at the son's death for his "Then living " lineal descendants. The words "then living" create a remainder which is contingent upon the survivorship of the lineal descendants until the death of the life tenant. Trust Co. Bank v. Heyward, 240 Ga. 557(1), 242 S.E.2d 257 (1978); Erskine v. Klein, 218 Ga. 112(1), 126 S.E.2d 755 (1962); Baker v. C. & S. Nat. Bank, 175 Ga. 161, 165 S.E. 21 (1932); Lane v. Patterson, 138 Ga. 710, 76 S.E. 47 (1912). This remainder is contingent as to the person because the identity of the beneficiaries is uncertain until the death of the son. Code Ann. § 85-703; Britt v. Fincher, 202 Ga. 661(3), 44 S.E.2d 372 (1947); V. Chaffin, Studies in the Georgia Law of Decedents' Estates and Future Interests, 361 (1978); see Code Ann. § 85-704 for the consequences of this decision.

The trial court's conclusion that the remainder to lineal descendants will vest upon birth of a lineal descendant is reversed. The remainder is contingent until the death of the holder of the life interest and will vest in living lineal descendants upon his death.

2. Although the remainder interest of lineal descendants is contingent upon their survival of testatrix' son, we conclude that the interest will vest, if at all, upon the death of the son, which is within the permissible period under the rule against perpetuities. This conclusion results from construing the survival to age 30 requirement as a condition subsequent which divests a vested remainder rather than as a condition precedent which creates a contingent remainder.

In this case, the will first gives a share of the trust corpus outright to each lineal descendant who survives the testatrix' son. Words of immediate gift after which an age restriction is attached have long been construed as vesting the remainder but postponing enjoyment to a later date. Bowman v. Long, 23 Ga. 242 (1857); Hall v. David, 67 Ga. 72 (1881). Moreover, the lineal descendants have an immediate right to receive the income from their shares and to invade the principal if necessary for their support. The right to receive income from property with final distribution postponed indicates a vested interest in the property. Gillespie v. Ellis, 168 Ga. 790, 149 S.E. 221 (1921).

The function of courts in construing a will is to discover and give effect to the intention of the testator, so far as that intention is consistent with the laws of this state. Code Ann. § 113-806; Shoup v. Williams, 148 Ga. 747, 98 S.E. 348 (1919). The language of immediate gift with only postponed possession as well as the provision for payment of income and invasion of principal persuade us that the testatrix intended that this remainder vests upon the life tenant's death in his lineal descendants subject to divestment.

The divesting condition is death before age 30. If this condition is...