Opinion
21051, 21057.
ARGUED OCTOBER 11, 1960.
DECIDED NOVEMBER 10, 1960. REHEARING DENIED NOVEMBER 22, 1960.
Construction of will. Fulton Superior Court. Before Judge Wood. June 30, 1960.
Poole, Pearce Hall, Margaret Hills Fairleigh, for Dodson.
Crenshaw, Hansell, Ware, Brandon Dorsey, Howard Harp, Harry V. Lamon, Jr., Howard Storey, contra.
1. William Cary Dodson by his will created a trust estate with a limitation over to his heirs at law who might be in life at the time of the termination of the trust estate. Applying the provisions of Code § 85-504, the words "heirs at law", would mean children and the descendants of children, and since the only children of the testator have died without issue, it now appears that this remainder failed, and the reversionary interest in the testator's estate vested, upon his death, in those who were then his heirs at law, with the right of possession postponed until the death of the last life tenant.
2. The interest of the "legal heirs" of Willis Hall Dodson in one-half of the income of the trust property was a remainder estate, contingent on his death prior to a termination of the trust estate, and the rules of Code § 85-504 would require a construction of the words "legal heirs" to mean children and the descendants of children. This remainder failed because of the failure of issue of Willis Hall Dodson, and the estate reverted to the testator's estate and should be distributed to the widows of the two sons of the testator.
ARGUED OCTOBER 11, 1960 — DECIDED NOVEMBER 10, 1960 — REHEARING DENIED NOVEMBER 22, 1960.
Trust Company of Georgia, as trustee under the will of William Cary Dodson, brought a petition for construction of Item Four of the will. The portions of this item material to the construction sought are as follows:
"Item Four. All the residue of my estate, both real and personal and wheresoever the same may be situated, which may be left after complying with the provisions of the previous Items of this Will, I give, bequeath and devise unto the Trust Company of Georgia to be held by it in trust, nevertheless, subject to the uses and benefits hereinafter provided, to wit:
"I direct that said Trustee shall monthly or quarterly, or as often as may be practicable, disburse the net income derived from the rents, interests, dividends or other sources from said trust estate, for the benefit of my son, Duff Child Dodson, now an inmate of the State Sanitarium for the Insane, at Milledgeville, Georgia, and his wife, Irene Williams Dodson, and my son, Willis Hall Dodson, in the following proportions and in the following manner, to wit: One-half (1/2) thereof to be paid to the guardian of my son, Duff Child Dodson, for his care and maintenance in as much comfort as his condition will permit, and for the support and maintenance of his wife, Irene Williams Dodson; and one-half (1/2) thereof to be paid to my son, Willis Hall Dodson. Upon the death of my said son, Duff Child Dodson, the entire share of the income otherwise payable for his benefit shall be paid to my daughter-in-law, Irene Williams Dodson, during her natural life. Upon the death of Willis Hall Dodson, the share of the said income otherwise payable to him shall be paid to his legal heirs. Upon the death of Irene Williams Dodson, the share of the income to be used or disbursed for her benefit under the provisions of this item of my will, shall be distributable equally for the benefit of my two sons, Duff Child Dodson and Willis Hall Dodson, or the survivor of them if but one survives said Irene Williams Dodson.
"Upon the death of all the legatees herein named, such of the trust estate created in this Item as remains undisposed of hereunder, shall then pass to my heirs-at-law who may then be in life, and the trust estate dissolved and the property divided among them in the proportions to which they may be entitled in law.
"If, at any time, the income derived from the property set apart in this Item in trust, as aforesaid, be insufficient to maintain the legatees entitled to receive the same in reasonable comfort, or should sickness or other providential emergency arise, the provision for which imperatively requires a larger sum or sums, in such an event I authorize the said Trust Company of Georgia, as such Trustee, to use a part of the corpus of said estate to meet the requirements for emergency above named, though in the end it becomes necessary to so employ the entire corpus of said trust estate, as it is my desire that the legatees named in this Item shall have the full benefit of the property set apart herein, but only as they need it, and in making disposition of any part of the corpus of the estate to meet such requirements or providential emergencies, said Trustee shall draw from the entire corpus of the estate without regard to the proportionate interest of the legatees and without regard to which one of the same is at the time receiving the benefit thereof, using its best judgment in carrying out this provision of my Will, and at all times endeavoring to maintain the same proportionate interest as hereinbefore provided as may be practicable."
The persons at interest in the proceedings are: Irene Williams Dodson; Florine Partridge Dodson, widow of Willis Hall Dodson; and Peryn Hall Stenzel, Audria Hall Davies, and Joan Hall Hackett, children of the testator's nephew. The trust estate consists of shares of stock, valued by the trustee at $53,712.93.
The case was submitted to the trial judge on an agreed statement of facts, from which it appears: William Cary Dodson executed his will on March 3, 1918, and died on November 11, 1919. At the time of his death he was survived by two sons, Duff Child Dodson, who was married to Irene Williams Dodson, and Willis Hall Dodson, who was married to Florine Partridge Dodson. Duff Child Dodson died on April 27, 1934, without issue, survived by his widow, Irene Williams Dodson, who is still in life. Willis Hall Dodson died on June 28, 1959, without issue, survived by his widow, Florine Partridge Dodson, who is still in life.
The trial judge entered an order, holding that Florine Partridge Dodson is entitled to the one-half interest in the income of the trust set up in item four of the will, which Willis Hall Dodson had received during his lifetime; and this income shall be paid to her until the death of Irene Williams Dodson, the last surviving legatee named in the will. Florine Partridge Dodson shall also have the right to encroach upon the corpus of the trust estate. With respect to the disposition of the remainder interest, the phrase "my heirs-at-law who may then be in life" means "the next of kin of William Cary Dodson who are in life at the time of the death of the last surviving legatee, to wit, Irene Williams Dodson."
Florine Partridge Dodson brought her writ of error to this court, excepting to the portion of the order holding that the remainder interest in the corpus of the trust shall go to the next of kin of the testator who are in life at the time of the death of Irene Williams Dodson. By cross-bill of exceptions Peryn Hall Stenzel, Audria Hall Davies, and Joan Hall Hackett except to that portion of the order holding that Florine Partridge Dodson is entitled to the one-half interest in the income of the trust which Willis Hall Dodson had received during his lifetime, and entitled to encroach upon the corpus of the trust.
1. Mrs. Florine Partridge Dodson, plaintiff in error in the main bill of exceptions, contends that the trial judge erred in holding that the remainder interest in the corpus of the trust estate, after the termination of the trust, will go to the next of kin of the testator who are in life at the time of the death of the last surviving legatee of the trust. The provision of the will in regard to a dissolution of the trust estate is as follows: "Upon the death of all the legatees herein named, such of the trust estate created in this Item as remains undisposed of hereunder, shall then pass to my heirs-at-law who may then be in life, and the trust estate dissolved and the property divided among them in the proportions to which they may be entitled in law."
The will specifically states that the trust estate is "for the benefit of my son, Duff Child Dodson . . . and his wife, Irene Williams Dodson, and my son, Willis Hall Dodson . . ." These are the only persons named as beneficiaries of the trust, and it will therefore be terminated on the death of Irene Williams Dodson, the only one of these three legatees now in life.
Code § 85-504 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 such words children, and the descendants of deceased children, by representation in being at the time of the vesting of the estate, shall take." Code § 85-701 provides: "An estate in remainder is one limited to be enjoyed after another estate is determined, or at a time specified in the future."
While the word "remainder" is not used in this provision of the will, it plainly created a trust estate in the income of the property during the life of three named legatees, with a limitation over to the testator's "heirs-at-law who may then be in life." Since the words "heirs at law" are "words of similar import" to those listed in § 85-504, they must be construed as meaning children and the descendants of children, no intention to the contrary being manifested. The trust estate was not to terminate before the death of both of the testator's sons, and the sons having died without issue, it can be determined at the present time that the estate in remainder in the corpus of the trust has failed. Beasley v. Calhoun, 178 Ga. 613 ( 173 S.E. 849). There being an intestacy as to this remainder estate, the reversionary interest in the testator's estate vested, upon his death, in those who were then his heirs at law, with the right of possession postponed until the death of the last life tenant. Oliver v. Powell, 114 Ga. 592(4) (40 S.E. 826); Smith v. Moore, 129 Ga. 644, 646 ( 59 S.E. 915); Armstrong Junior College Commission v. Livesey, 189 Ga. 825 ( 7 S.E.2d 678, 132 A.L.R. 1063).
The heirs at law of the testator at the time of his death were his two sons. The fact that the sons were life tenants of the trust estate would not prevent the vesting in them of the reversionary interest in the remainder estate. Payne v. Brown, 164 Ga. 171(2) (137 S.E. 921). Each son died intestate, leaving a surviving widow, who would be his sole heir under the rules of inheritance. Code § 113-903. Mrs. Florine Partridge Dodson, the plaintiff in error, is now the owner of a vested one-half interest in any corpus of the trust estate which may remain after the death of the last surviving legatee of the trust estate (Mrs. Irene Williams Dodson), with the right of possession postponed until the termination of the trust estate.
2. Mrs. Florine Partridge Dodson further contends in her bill of exceptions that each of the widows of the testator's sons is entitled to one-half of the income from the trust estate during the lifetime of Irene Williams Dodson, and each is vested with a one-half undivided interest in the remainder estate, and that the lesser estate is merged in the greater estate, so that each would now be entitled to a one-half undivided interest in the corpus of the estate. (On merger of estates, see Code § 85-710; Wilder v. Holland, 102 Ga. 44, 29 S.E. 134; Bowen v. Driggers, 138 Ga. 398, 75 S.E. 318.) The language in the will upon which Mrs. Florine Partridge Dodson relies to sustain her contention that she is entitled to one-half of the income of the trust is the following: "Upon the death of Willis Hall Dodson, the share of said income otherwise payable to him [one-half] shall be paid to his legal heirs." She asserts that no estate is created by this provision which could be the subject of a limitation over so as to invoke the rule in Code § 85-504, that the legal title remains in the trustee until the termination of the trust estate, and the "legal heirs" of Willis Hall Dodson are simply substituted for him as income beneficiaries pending the time for the vesting of the remainder.
Willis Hall Dodson was married to Florine Partridge Dodson at the time the testator made his will, and he could have named her a beneficiary in the will if he had so desired. Certainly there is nothing in the provision of the will setting up the trust which indicates that he intended a different meaning to the words "his legal heirs" than their legal significance under applicable rules of law. If a remainder estate in the income of the trust estate was created in the legal heirs of Willis Hall Dodson, in the event that he died before the termination of the trust estate, then there was a "limitation over" to such legal heirs, and Code § 85-504 establishes the meaning of the words "legal heirs" (being words of similar import to those contained in the section) to be children and the descendants of children.
In Ewing v. Shropshire, 80 Ga. 374, 377 ( 7 S.E. 554), a definition was given of a "limitation over," which has been cited and followed in a number of cases. It was there held: "What is a `limitation over'? In a large sense, and no doubt in the sense intended by the Code, it 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." Code § 85-104 defines an "estate" as follows: "Estate is the quantity of interest which an owner has in property. It is applicable equally to realty and personalty. Any estate that can be created in the former may be created in the latter, and the rules of construction as to both shall be the same."
A remainder estate is not necessarily the entire estate that is left after a previous estate is determined. A legatee may have an estate for life, his own or that of some other person ( Code § 85-601), and still be a remainderman. Buchanan v. Nicholson, 192 Ga. 754, 768 ( 16 S.E.2d 743). The contingent interest given to the "legal heirs" of Willis Hall Dodson, in the event that he died prior to the termination of the trust estate, was an "estate" to be enjoyed after his estate expired, and there was thus a "limitation over" to his legal heirs. The fact that the title to the trust property was to remain in the trustee during the entire period of the life tenancy would not prevent the application of the usual rules of construction as to the estates created. Lane v. Citizens Southern Nat. Bank, 195 Ga. 828, 833 ( 25 S.E.2d 800).
Code § 85-504 would apply with equal force to this limitation over in the trust income as to the one in the corpus of the estate, dealt with in the first division of this opinion, and under the same factual situation, there would be an intestacy as to this one-half interest in the income of the trust, and the widows of the two sons of the testator, as the sole heirs of the sons, under the rules of inheritance ( Code § 113-903) would be entitled to this income. Mrs. Florine Partridge Dodson would thus only be entitled to one-fourth of the entire income of the trust property, and there could be no merger of estates for this reason. There could be no merger of estates for the further reason that Mrs. Irene Williams Dodson was given the privilege of drawing on the corpus of the trust estate under certain circumstances. Mrs. Florine Partridge Dodson, not being a legatee under the item creating the trust estate, would not be entitled to exercise the privilege given to the "legatees" to draw on the corpus.
The rulings above made on the main bill of exceptions dispose of all the questions made as to the construction of the will, and it is unnecessary to consider the cross-bill.
Judgment reversed on the main bill of exceptions; cross-bill of exceptions dismissed. All the Justices concur.