dissenting.
I respectfully dissent from the majority’s determination that the clause in the deed granting to the *677descendants of Stephen Bullman Lufburrow a right of first refusal to purchase the property is in violation of the rule against perpetuities. The rule against perpetuities is found in Code Ann. § 85-707. (Ga. L. 1953, pp. 42, 43). It forbids limitations on estates beyond the duration of any number of lives in being, plus 21 years and the usual period of gestation thereafter. There is no legal prohibition against selling land to another while reserving the right to repurchase within a specified time. Barron v. Anderson, 204 Ga. 7 (48 SE2d 846) (1948). However, a contingent estate based upon an event which may occur beyond the rule against perpetuities is void for remoteness. Thomas v. C. & S. Nat. Bank, 224 Ga. 572 (163 SE2d 823) (1968).
The controversy for resolution here is when the class containing "all living descendants” of the grantor is fixed. If it is the date of the conveyance, then the condition is valid. If it is the date of resale, then the condition is void.
"The cardinal rule of construction, both at common law and under our code, is that instruments containing conditions, limitations, and restrictions are to be construed in each case in such way as to carry into effect the intent of the parties as gathered from the instrument as a whole.” Wadley Lumber Co. v. Lott, 130 Ga. 135, 137 (60 SE 836) (1907); Floyd v. Hoover, 141 Ga. App. 588 (234 SE2d 89) (1977). Thus, where an instrument is fairly open to two constructions, one of which offends against the rule against perpetuities and one of which does not, it is the court’s duty to adopt the one which will not offend against the rule against perpetuities. See Simes and Smith, The Law of Future Interests, § 1288. "[W]herever possible an instrument will be so construed as to create an estate not too remote rather than one which violates the rule against perpetuities.” Pindar, Georgia Real Estate Law 271, § 7-134.
"The period for computing the time of vesting begins at the effective date of the instrument. If it is a will, the effective date is that of the testator’s death; if it is a deed, it is the time of delivery.” Pindar, supra, § 7-141. See also Boykin v. Bradley, 192 Ga. 212 (14 SE2d 734) (1941); Hollis v. Lawton, 107 Ga. 102 (32 SE 846) (1899). Under these rules, the descendants referred to in the deeds in question *678are those who were living at the time the deeds were executed. Thus, the limitation placed in the deeds does not fail for remoteness, and the intention of the parties at the time of the transaction must be given effect. The trial court erred in granting summary judgment.
I am authorized to state that Presiding Judge Quillian and Presiding Judge McMurray join in this dissent.