1. Under a provision of a will "I give, bequeath and devise to my two sons [naming them], the following property, to wit: My Home Place where I now live, upon condition that the said [named sons] shall take care and support my wife . . and my daughter . . then the above described property descend and belong to the heirs of the said [named sons]" — the named sons were devised a life estate in the home place conditioned upon their taking care of and supporting the wife and daughter of the testator. See King v. McDuffie, 144 Ga. 318 (87 S.E. 22); Perkins v. Perkins, 147 Ga. 122 (92 S.E. 875); Banks v. Morgan, 163 Ga. 468 (136 S.E. 434); Pearre v. McDonald, 168 Ga. 752 (149 S.E. 44); Bristol Savings Bank v. Nixon, 169 Ga. 282 (150 S.E. 148); Beasley v. Calhoun, 178 Ga. 613 (173 S.E. 849); Rainey v. Spence, 185 Ga. 763 (196 S.E. 416); Sikes v. Moxley, 201 Ga. 76 (38 S.E.2d 671).
2. Where, at the time the testator devised the life estate referred to in the preceding headnote, three children of the two named beneficiaries were in life, the language, "then the above property descend and belong to the heirs" of the named beneficiaries, established a class who should take after the expiration of the life estate (Singer v. First National Bank Trust Co., 195 Ga. 269, 272 (24 S.E.2d 47), and the remainder interest vested in the three children who were in esse, subject to be reopened to let in after-born children of the named beneficiaries. Milner v. Gay, 145 Ga. 858 (2) (90 S.E. 65); Nixon v. Nixon, 192 Ga. 629 (15 S.E.2d 883).
3. Where, after termination of the life estate, one of the named beneficiaries was survived by three children, and the other was survived by seven children, the trial court did not err in holding that the fee-simple title to the estate vested in the surviving children of the two named beneficiaries, and that each of those coming within the above class took per capita. Compare Almand v. Whitaker, 113 Ga. 890 (39 S.E. 395); Williams v. Trust Co. of Ga., 185 Ga. 643 (196 S.E. 74); MacGregor v. Roux, 198 Ga. 520 (32 S.E.2d 289).
Judgment affirmed. All the Justices concur, except Atkinson and Wyatt, JJ., who dissent because they do not think that this is a proper case for the application of the Declaratory Judgment Act.
No. 15794. APRIL 17, 1947. James Reddick executed his will on October 30, 1902, and died the same day. Item 1 provided: "I give, bequeath and devise to my two sons, James L. Reddick and Z. V. Reddick, the following property, to wit: My Home Place where I now live, upon condition that the said James L. Reddick and Z. V. Reddick shall take care and support my wife, Leziann Reddick, and my daughter, Laura Reddick, then the above described property descend and *Page 172 belong to the heirs of the said James L. Reddick and Z. V. Reddick."
J. A. Roe filed in Gordon Superior Court, against the widow and seven named children of James L. Reddick, a petition which alleged substantially the following: The petitioner is the owner of the land described in item one of the will, having acquired it under successive conveyances from the two named beneficiaries in the will of James Reddick. The first item of the will is not plain, and a controversy has arisen between the petitioner and the defendants, who claim title to an undivided interest in the property. The land is in possession of tenants, and the petitioner has requested them to pay the rents to him, but the defendants are claiming that they are entitled to a part of the rents. Since the claim of title of both the petitioner and the defendants is predicated upon a construction of item one of the will, the petitioner is entitled to have the will construed and to have a declaratory judgment as to the rights of the respective parties. The heirs at law of Z. V. Reddick, having executed a quitclaim deed to the petitioner's predecessor in title, are no longer interested in the property, and are not necessary parties. The land can not be partitioned in kind, and in the event it should be determined that the defendants have title to any part of the land, it should be partitioned in equity by a sale as provided by law. The petitioner has no adequate remedy at law, and to save a multiplicity of suits and to do full justice to all the parties, only a court of equity has jurisdiction. The prayers were that: (1) process issue; (2) the will of the testator be construed by a judgment of the court as to what interest J. L. Reddick took under item 1; (3) a declaratory judgment be rendered declaring what rights, if any, the defendants have in the land; (4) a receiver be appointed; (5) in the event it shall be determined that the defendants have title to any part of the land, that it be partitioned between the respective parties; (6) the petitioner have such other relief as to the court may seem meet and proper.
The court construed item one of the will to create in James L. Reddick and Z. V. Reddick a life estate in the land with remainder over in fee to their heirs. The petitioner filed proper exceptions pendente lite to this ruling.
When the case came on for trial, it was agreed by all the parties *Page 173 that the cause should be submitted to the judge on all issues of acts and law without the aid of a jury. The agreed statement of facts showed: At the time the will was executed, the testator had three living grandchildren, who were the children of James L. Reddick. After the will was probated in solemn form, James L. Reddick and Z. V. Reddick entered into possession of the property and performed all the conditions required under the will in taking care of the wife and daughter of the testator. A predecessor in title of the petitioner acquired the land under sale pursuant to a power contained in a security deed made by James L. Reddick and Z. V. Reddick. Leziann Reddick, the widow of the testator, died in 1917. James L. Reddick died in January, 1941. Z. V. Reddick died in September, 1943, and Laura Reddick, the daughter of the testator, died in May, 1945. The widow and children of James L. Reddick took care of and supported Laura Reddick after the death of Z. V. Reddick. At the time of the death of James L. Reddick, he had seven living children; and at the time of the death of Z. V. Reddick, he had three living children; and all of the children were in life at the time the suit was filed.
After hearing argument the court rendered the following judgment: "The fee-simple title to the estate of James Reddick is now vested in the grandchildren of the said James Reddick, their heirs and assigns, per capita, that is, share and share alike; and that J. A. Roe, plaintiff, as grantee of the interest which the three children of Z. V. Reddick, owned in said estate, is the owner in fee simple of an undivided three-tenths interest in the said estate, and that the seven children of the said J. L. Reddick are the owners in fee simple of an undivided seven-tenths interest in said estate."
The petitioner excepted to the above judgment and assigned error thereon as being contrary to law and the evidence. In his bill of exceptions the petitioner also assigned error on his exceptions pendente lite.