dissenting. 1 can not concur in the ruling contained in the third headnote, or in the judgment of affirmance which necessarily follows from that ruling. Considering the will of Mr. Garrard as a whole, I can reach no other conclusion than that the remainders having reference to the “legal heirs” of his three daughters are contingent remainders. It seems to me that the opinion of the majority has subordinated the manifest intention of the testator to the application of the rule in Shelley’s case, and has become affected by the bias which compelled the old ecclesiastical courts in the interest of the church and the barons to so construe every conveyance as that it should vest as soon as possible. As said in the opinion of the majority, the testator in this case was no ordinary man. He was one of the greatest lawyers of his time. He so impressed me more than forty-five years ago, when I was associated with him in the General Assembly. This is no ordinary will which the court is now construing. I deem the paramount controlling element in the construction of any will is to give effect to the intention of the testator. It matters not how peculiar may be the desires of a testator as to the disposition of his property after his death. Every man has a right to devise his property by will just as he pleases, provided the disposition does not violate the law. And where the intention of a testator can be gathered from the instrument, rules of law are absolutely valueless; for, as has often been said, the testator’s will is the law of that case. The entire estate in this case was devised by the will executed in 1900 to named executors, not to heirs or children. This is one unusual fea*115ture. In a later item of the will the testator again charged these executors to carry out his wishes. No time was fixed for the delivery of any property, and, so far as appears from the record, after thirty years the estate is still undivided. This is in accord with the wishes of the testator. If the testator had said in terms that the remainders provided for the legal heirs of his three daughters were to be treated as contingent remainders, would any one say that the will of the testator should be disregarded because under the construction of courts in similar cases such remainders might have been held to be vested ? I think not, because the will of the testator as to the disposition of his own property would be paramount to the ruling of the court as to his property, in that it would only give the testator the right which inheres in him, that of disposing of his property after his death in accordance with his own desires, and a court passing upon and construing the will of the testator in such a case would be compelled to hold that the estate created was contingent although without the use of such language in the will the court would otherwise have held the remainder to be vested. As said by Mr. Underwood in his excellent work on wills, there is frequently a very fine line which distinguishes a contingent from a vested remainder. “The difficulty, in construing the language of the will, of ascertaining whether the testator intends to give a vested or contingent interest, is very great. The line of demarcation between vested and contingent future estates is very fine, and discernible often only with great difficulty. . . It is not so much the certainty or uncertainty of the enjoyment of the fee in remainder after the life-estate ends as the uncertainty of the person who has a present right to enjoy the future estate if the particular estate came to an end now, which determines the character of the remainder.” It is true that “no future or executory limitation will be regarded as contingent which may, consistently with the intention of the testator gathered from the whole will, be deemed vested.” Underwood on Wills, 1299, § 861. What, then, is a contingent estate? . A remainder is contingent where it may fail to be effective because its existence may depend upon the happening of events which may or may not take place. If there is any potency in a well known maxim, “nemo est hssres viventis” (no one is an heir of a living person), the estate sought to be devised by Mr. Garrard to his three daughters can not, in my *116opinion, be otherwise construed' than as a contingent remainder. The facts of this case at the time of the trial absolutely demonstrate the statement just made.
I do not lose sight of the rule of construction that favors vesting of remainders and so vesting them at the earliest opportunity, which lias inclined our courts in eases of doubt to hold that certain remainders were vested rather than contingent; but to me it is plain that in this case the vesting of the remainder is made dependent upon the event of the remaindermen surviving the life-tenant. I reach that conclusion not only from the will itself, considering all that is contained within the four corners of the instrument, but from the anomalous results (out of all harmony with the intention of the testator) which will obtain from a construction holding that the testator in this case intended by the use of the words “legal heirs” of his daughters at their death to mean the legal heirs of the daughters at the time of the death of the testator. I am aware that the latter would be the proper construction of the wishes of the testator if it be held that the remainder created by the will is a vested remainder. But can this will be read, bearing in mind the extreme care with which' the testator sought to preserve his estate for heirs of his own blood, and sanction a result under which one fourth of the estate of the testator goes to those in whose blood flows not a single drop of the blood of the testator? If such a result is proper under the laws of this State, the law should of course be enforced;,but I assert such' result can be reached only by strictly applying the law applicable to vested remainders to what seems to me to be remainders clearly contingent in their nature. The learned .judge in the court below placed his decision upon only one case, Milner v. Gay, 145 Ga. 858 (supra). Counsel for plaintiffs in error ask that if necessary that case be overruled. To me that case, being only by five Justices, is not controlling and need not be overruled. . Furthermore, under the well-settled rule of jurisprudence, it must yield to older decisions which held, in cases where the same point was presented as here, that such remainders as are created by this will are contingent remainders only. .It may be remarked in passing that it appears from the will itself that Mr. Garrard was a lawyer, and it may be presumed that he had at least, some familarity with the decisions of the Supreme Court of Ms own State. He was no doubt familiar, at the time he executed this *117will, with the decisions in Sharman v. Jackson, 30 Ga. 224; Taylor v. Meador, 66 Ga. 230; Darnell v. Barton, 75 Ga. 377; Watson v. Adams, 103 Ga. 733 (30 S. E. 577). The decision in Milner v. Gay, supra, was delivered several years after his death. If the testator investigated the law on the subject as it stood up to the time of the rendition of the decision in Milner v. Gay, it was his evident intention to devise contingent remainders to take effect to the legal heirs of his daughters at their death and not at his own death, and he used language appropriate for that purpose. He knew that the rule in Shelley’s case, had been practically abolished in this State by section 3659 of the Code and the decisions to which I have adverted. So I think the decision of this case.could safely be placed upon the principle that the intention of the testator, as derived from the will and the circumstances as evidenced by the will, should control in its construction by the court. I also am of the opinion that in these circumstances, judged by the controlling authorities of this court, this construction is not only not contrary to law but is in accordance with law.
It is a sound maxim which declares that nemo est hseres viventis. No man is an heir while the ancestor lives. Consequently it was said in Sharman v. Jackson, “Wherever the limitation is contingent by reason that the person or persons to whom it is directed can not be ascertained, as in the case of a limitation to the right heirs of J. S. (then living), no interest will vest in the ‘heir’ during the life of J. S., nor will it be transmissible or descendible from any one dying before it- becomes vested.” In that case the court proceeded, to say: “It is a general rule that a remainder limited to the heir or heirs of a living person is a contingent remainder. To this there are certain exceptions, as where there are explanatory expressions showing that they were used in some other sense, as sons, or children, as denoting the persons who at the time are the apparent heirs. Another exception is, when, by the celebrated rule in Shelly’s case, the words are to be considered as words of limitation. 2 Eearne, 202. In this instrument, however, there are no explanatory words showing an intention that they are used as synonymous with children, or sons, or daughters, or that they are intended to designate any particular persons who at its date were the heirs presumptive of the tenant for life; and having already determined that, by reason of the superadded words, *118the term 'heirs of the body’ are taken ont of the application of the rule in Shelly’s case, they must ex vi termini constitute a contingent remainder, by virtue of the maxim nemo est hasres viventis.” At the time the will was executed none of the daughters of the testator were married. The testator could not know certainly that all of them would marry, or which' one, if any, would marry. He could not foresee whether, if they married, none of them would have children, as Mrs. Rucker had had none, or whether at the time of the death of these daughters any one of them should be survived by children at the time of her death; and certainly he could not tell whether either of them would have children surviving them even at the time of the distribution of his estate, for which no time was 'fixed. Even now, 22' years since the death of the testator, two of the daughters have no children, and the other has only one surviving child. The whole scheme of the will of the testator was to keep his property in the hands of his own lineal descendants as long as it could be legally done. In item 3 he devised all his property of whatever kind or character “to my executors hereinafter named, to have and to hold the same, during the life of my wife, and at her death to divide the same among my children, share and share alike, subject to the deduction and provisions made for minor children hereinafter expressed in item fifth.” In item Í the testator provided: “Should I survive my wife, in that event I give, bequeath, and devise all of my property, of whatsoever kind or character, real and personal, to my children, share and share alike, subject to the deduction and provisions made for minor children hereinafter expressed in item fifth of this will. The fifth item makes some special provision for such of the testator’s children; and though this item has no present pertinent reference to anything except the disposition of certain property for the benefit of his minor children, the testator therein took pains to designate each of his immediate children by the special words “child or children,” using the words “child or children” fifteen times in item 5 alone.
In item' 6, in providing for a home for each of the testator’s daughters, it is provided that the title to “said house and lot shall be taken in the name of said daughter for and during her natural life, and at her death to her legal heirs. I have directed this investment to be made to insure, as far as human foresight can, a *119home for each one of niy daughters. . . Either or all of my said daughters shall have, the right to direct an additional amount out of her share to be added to the said sum of $2500, but the title to said property must in any event be taken as in this item directed. After the investment has been made of a portion of the share of each of my said daughters, as provided for in the foregoing part of this the sixth item of my will, I desire and direct that the remaining portion of the shares of each of said daughters shall be invested in property, either registered bonds or real estate, the title [italics mine] of which said property shall be taken in the name of said daughter for and during her natural life, and at her death to her legal heirs.” In item 7 the executors are given full power to sell any of the property of the testator; but it is further explicitly provided that “all monies which may come into the hands of my executors, either from maturing investments or otherwise, before the time arrives for the final distribution of my estate, shall be invested in such property as my executors may in their discretion see fit.” Item 8 is: “I give to my wife, Annie Leonard Garrard, the entire net income of my estate, for and during her natural life, and I desire and direct my executors to pay the same over to her as rapidly as the same is collected; her receipt for the same shall be ample acquittance to them. I do this knowing that to the best .of her ability she will take care of our children.” Item 9 names his wife and his three sons as executors of his will and as guardians of the persons and property of his minor children. Through this item, in referring to his children, he calls them children. Item 10 directs the executors to sell his law library and office furniture to his son Frank ITrquliart Garrard, for $1000, the library and furniture to be delivered to the son immediately after the testator’s death, but the $1000 is to be paid without interest whenever the estate has been distributed. It will be noted that in every instance in the will where the testator refers to his children, he designates them by the special words “child or children,” never using the term “legal heirs” to designate such child or children, and he uses these words twenty-four times and in all the items of his will preceding and following item sixth. It is apparent that the testator intended to put a different meaning on the word “children” and the words “legal heirs.” In item 6 by special words he expressly limited the estate to be taken by the child or those children or those wdio were *120daughters, whereas nothing was said as to the three shares devised to his sons. None but one learned in the law would have omitted to have made that express limitation in item 4; but the testator was not only familiar with section 3659 of the Code but also knew that “Where there are inconsistent provisions in the same will, the latter must prevail.” Section 3922, Civil Code (1910). The testator must have known also that in fact the provisions in items 4 and 6 were not inconsistent, but that item 6 properly only modified a portion of item 4.
The words in item 6 that the title of each daughter’s share “shall be taken in the name of said daughter for and during her natural life and at her death to her legal heirs,” taken alone, might have fallen within the rule in Shelley’s case prior to the Code of 1863, and so. in every instance following the first in item 6 the testator used “qualifying words” which control the preceding words, “for and during her natural life, and at her death to her legal heirs,” and clearly show that the share of each daughter is expressly limited to a mere life-estate, little more than a mere usufruct, and these superadded words, “for and during her natural life, and at her death to her legal heirs,” are clearly without the rule in Shelley’s case. In the second paragraph of item sixth the testator requires that after the investment in the home the remaining portions of the shares of each of his daughters shall be invested by his executors in either registered bonds or real estate, that is, that all of such share of said daughter should be invested in such property alone as would require a written title, a title which in the lifetime of the daughter would render the property unsalable. This with the provision that when these investments have been made, “the possession and use” of said property is to be turned over to each of said daughters, and the income, rents, and profits arising therefrom shall be used and enjoyed by them, except that they “shall in no wise create any encumbrance or lien on the life-estate.” To me it seems clear that it was the intention of the testator that the remainder estate after the death' of each daughter was a contingent remainder falling to her legal heirs, persons who could not be ascertained until the death of each daughter. They were to be persons confined to “her legal heirs,” and under the doctrine that no man is heir to a living person any one who was not a legal heir of a daughter was expressly excluded by the testator, as manifest *121by Kis explicit words “her legal heirs.” This construction is strengthened and enforced by the fact that when the testator used the word “children” to mean children, he so used it; and therefore when he used the other words “legal heirs,” he must have intended something entirely different from “children.” Judge Bleckley, in discussing the ease of Wilkerson v. Clark, 80 Ga. 367, 370 (supra), and referring to the contention of counsel that the words “heirs of the body,” used in the will in that case, did not mean heirs but children, used the following language: “If he meant children in the literal and restricted sense, he could have said so with a single word, and one which was appropriate to his supposed purpose both legally and colloquially.” And so in this case it seems to me that if the testator had intended “legal heirs” to mean “children,” he could have said so with a single word which would have been appropriate to the purpose now attributed to him. To appropriate to Mr. Garrard’s will the language used in Sharman v. Jackson, supra, which has never been overruled or criticised: In this instalment (Mr. Garrard’s will) there are no explanatory words showing an intention that they (the words legal heirs) are used as synonymous with children, or sons, or daughters, or that they are intended to designate any particular person who at his death were the heirs presumptive of the tenant for life; and having already determined that, by reason of the superadded words, the term legal lieirs (in Sharman v. Jackson, heirs of the body) are taken out of the rule in Shelley’s case, they must ex vi termini constitute a contingent remainder, by virtue of the maxim, nemo est hseres viventis.
In the following cases very similar to the one now before us, this court has held that the language used created contingent and not vested remainders: Sharman v. Jackson, 30 Ga. 224; Taylor v. Meador, 66 Ga. 230; City Council of Augusta v. Radcliffe, 66 Ga. 469; White v. Rowland, 67 Ga. 546 (supra); Darnell v. Barton, 75 Ga. 377; Cushman v. Coleman, 92 Ga. 772 (supra); Watson v. Adams, 103 Ga. 733 (30 S. E. 577); Smith v. Smith, 130 Ga. 532 (supra); Lane v. Patterson, 138 Ga. 710 (76 S. E. 47); Cock v. Lipsey, 148 Ga. 322 (96 S. E. 628) ; Murphy v. Murphy, 151 Ga. 438 (supra); Harris v. McDonald, 152 Ga. 18 (supra); Burton v. Patton, 162 Ga. 610 (supra); Dismukes v. Bagley, 165 Ga. 665 (supra).