dissenting.
1. The appellants strongly contend that Code Ann. § 85-504 is applicable to a determination of this dispute. I agree.
That section provides: "Limitations over to 'heirs,’ 'heirs of the body,’ 'lineal heirs,’ 'lawful heirs,’ 'issue,’ or words of similar import, shall be held to mean 'children,’ whether the parents are alive or dead; and under siich words children, and the descendants of deceased children, by representation in being at the time of the vesting of the estate, shall take.”
The testator in this case set up this trust for a term of years, with direction that the corpus be distributed to two named beneficiaries. Therefore, the first estate is the trust estate, remainder to Barbara and Virginia. In terms of Code Ann. § 85-504, a remainder is a limitation over. Lane v. C. & S. Nat. Bank., 195 Ga. 828 (25 SE2d 800) (1943). The definition of a limitation over "includes any estate in the same property created or contemplated by the conveyance to be enjoyed after the first estate granted expires or is exhausted.” Ewing v. Shropshire, 80 Ga. 374, 378 (7 SE 554) (1888) (Emphasis supplied.) As the devise *512in this case constitutes a limitation over to Barbara and Virginia, use of the word "heirs” is subject to the interpretation of Code Ann. § 85-504, and must mean "children.” The Roberts children are not Virginia’s children and there is no evidence that she ever adopted them. Virginia’s interest, therefore, must revert to the testator’s estate.
The Roberts children rely on the case of Cooper v. Harkness, 188 Ga. 121 (2 SE2d 918) (1939), wherein it was held that a widow could take the share of her deceased husband despite the fact that she was not his child within the meaning of Code Ann. § 85-504. That case, though, was based solely on the fact that the gift to the husband was not contained in a limitation over as there was no provision for a prior estate before he could take. Here, no one can take before the expiration of the preceding trust estate. Therefore, the problem of determining when Virginia’s interest vested is eliminated, because it has reverted.
2. I also agree with the appellant’s contention that the early vesting rule should not be applied in this case since a reading of the entire will and especially Item 17 shows a manifest intention of the testator to the contrary. Code Ann. § 85-708. Item 17 clearly provides that at the expiration of the trust estate, the corpus would be distributed to Barbara and Virginia "or to their surviving heirs.” This indicates an intention that neither Virginia nor her heirs would take until the expiration of the trust estate.
Code § 85-708, the "early vesting rule,” must be construed in connection with Code § 113-806, the "four comers rule.” The tendency of courts to apparently prefer the expedient of applying the "early vesting rule” over the "four corners rule” has been severely criticized by Professor Vemer F. Chaffin in his Studies in the Georgia Law of Decedent’s Estates and Future Interests, pp. 331, 392. He suggested that Georgia courts "have carried the application of this statute to extreme lengths, producing a line of decisions which reach results that could not be anticipated or were perhaps unintended by the donor.” He further noted that the early vesting rule was originally designed to avoid the destructibility of contingent *513remainders but that Georgia Law now provides that contingent remainders are not destroyed when a prior estate fails. Professor Chaffin concludes that "the preference for a vested construction has little, if any, justification in modem law. It is an archaic relic of an era when contingent remainders were destructible and inalienable; and since these conditions no longer obtain, continued adherence to the doctrine is irrational.” Id. at 332.
Applying the "four comers” rule, I conclude that the interest designated for Virginia under the terms of the testator’s will was to vest not upon the death of the testator but upon the expiration of the trust estate.
I would reverse the trial court’s holding that the appellees have a vested interest in the corpus and income of the trust.