Arnold v. Richardson

Grice, Justice,

dissenting. I cannot agree with the construction given Item 3 by the majority opinion or that of Chief Justice Duckworth or Mr. Justice Undercofler. However, I am in accord with the result reached by Mr. Justice Undercofler.

*187In my view the first portion of this item, which recites that “after the death of my wife, I give . . . unto my three children ... for and during their natural lives all my property, share and share alike, with remainder to their children,” unquestionably created vested remainder interests to their own parent’s share of the estate in the grandchildren in life at the testator’s death'. This vested remainder would be subject to open for other children born to that parent, but would not be subject to divestment upon their predeceasing their parent, since survivorship is not required by this language. See Code § 85-706; Olmstead v. Dunn, 72 Ga. 850, 860-861; Lumpkin v. Patterson, 170 Ga. 94 (2) (152 SE 448) (one Justice dissenting).

The next sentence of Item 3, “Upon the death of any of my children, his child or children shall immediately succeed to the interest and share of such deceased child and parent,” serves to make clear the testator’s intention that the remainder interests created by the first sentence were to vest in possession immediately upon the death of the parent. I see no requirement by it that the grandchildren must survive their parent in order to receive that parent’s share, as held by the majority. Also, this sentence makes it clear that the vested remainders created by the first portion of the item are as to the grandchildren’s own parent’s share only, and negatives the position, taken by the other dissent, that the first sentence of this item created a vested remainder in the entire estate to the grandchildren as a class.

The last sentence in Item 3 further negatives the construction that this item created a vested remainder to the grandchildren as a class. It creates remainders in all of the grandchildren as to the share of any child of the testator who dies without leaving children surviving, and expressly provides that if there is more than one set of grandchildren, this remainder shall not be to all of the grandchildren as a class, but that each set shall constitute a class.

Thus, under the above quoted portions of Item 3, the two grandchildren in life at the death of the testator, Leonard B. Richardson and Everard D. Richardson, Jr., were vested with remainder interests in their father’s one-third share of the life estate. When Everard, Jr., died before his father, his heirs were *188entitled to his vested remainder interest. Code § 85-704. Under his will this went to his widow, the appellant here. Therefore, upon the death of his father, she was entitled to Everard, Jr.’s one-half of his father’s share of the testator’s estate.

As to disposition of the shares of the testator’s other two children, Mrs. Florine Richardson Van Cleave and Marion S. Richardson, the last sentence of Item 3 provides: “Should any of my children die without issue, that is without child or children, him or her surviving, then the share bequeathed and devised to such child for life shall go to and vest in the children of my other children, that is my grandchildren, each set of grandchildren should there be more than one set of grandchildren at the death of the last of my children herein named, to take as a class and not per capita.” This sentence created contingent remainders in the testator’s grandchildren in life at his death as to the shares of his children who were then childless, subject to open and let in afterborn grandchildren. This contingency was as to an event, the two childless children dying without leaving children surviving. See Morse v. Proper, 82 Ga. 13 (8 SE 625); Wiley v. Wooten, 140 Ga. 16 (78 SE 335).

In my view, the majority misconstrue this last sentence of Item 3. From the language “go to and vest ... at the death of the last of my children . . they reach the conclusion that “the testator intended that these estates were to vest at the death of the last life tenant in the grandchildren surviving at that time.” However, when the entire sentence is considered, it will be seen that the phrase “at the death of the last of my children” relates to the testator’s intention as to how the grandchildren are to take, rather than as to the time of the vesting of their interest under this portion of the item. The language is: “go to and vest in the children of my other children, that is my grandchildren, each set of grandchildren should there be more than one set of grandchildren at the death of the last of my children herein named, to take as a class and not per capita.” There is no requirement here of survivorship, and no indication of any intent to withhold the vesting of interest or title until the death of the last life tenant. The vesting of title and the vesting of possession are different and may occur *189at different times. Crawley v. Kendrick, 122 Ga. 183, 184 (50 SE 41).

Therefore, when the testator’s daughter Mrs. Van Cleave died in 1947 leaving no children, the event upon which the remainders as to her share were contingent occurred, and the two grandchildren’s remainders as to her share became vested, subject to opening to include other grandchildren born before distribution and vesting of possession at the death of the last life tenant. So when Everard, Jr., died in 1953, he had a vested remainder as to some part of Mrs. Van Cleave’s share, the amount depending on whether more grandchildren were born later. He devised this vested interest to his widow, the appellant here. No other grandchildren were born, so at the death of the last life tenant in 1967 and the vesting of possession, Everard, Jr.’s widow and devisee was entitled to one-half of Mrs. Van Cleave’s share of the testator’s estate.

Everard, Jr., died before Marion, the last life tenant, so no part of this share vested in Everard, Jr., during his lifetime. At his death Everard, Jr., still had a contingent remainder as to one-half of this share, contingent still on an event, Marion not leaving children surviving. Marion died childless, so Everard, Jr.’s widow and devisee took his one-half interest in this share since it was contingent on an event, not a person, and hence transmissible. See Code § 85-704.

Therefore, Everard D. Richardson, Jr.’s widow and devisee, the appellant here, is entitled to one-half of the property passing under Item 3.

This result is entirely consistent with the testator’s desire, expressed in Item 4, that his estate “. . . should go ultimately to my children and grandchildren.” Under the view expressed in this dissent, the estate did go ultimately to the grandchildren. The appellant takes because one of them by his will left his share to her.

For the foregoing reasons I would reverse the judgment.

I am authorized to state that Mr. Justice Mobley concurs in this dissent.