Opinion
27808, 27809.
ARGUED MARCH 13, 1973.
DECIDED APRIL 13, 1973. REHEARING DENIED APRIL 25, 1973.
Construction of will. DeKalb Superior Court. Before Judge Dean.
Swertfeger, Scott, Pike Simmons, Joseph Szczecko, for appellants, case No. 27808.
Terrence Lee Croft, A. W. Franklin Bloodworth, George H. Carley, McCurdy, Candler Harris, for appellees.
Hansell, Post, Brandon Dorsey, Terrence Lee Croft, A. W. Franklin Bloodworth, for appellants, case No. 27809.
Joseph Szczecko, George H. Carley, for appellees.
The time of vesting a right of possession in the holder of a remainder interest in a life estate which is dependent upon the remainderman surviving the life tenant cannot be accelerated by an assignment of the life tenant of his interest to the remainderman so as to exclude the rights of possible contingent remaindermen.
ARGUED MARCH 13, 1973 — DECIDED APRIL 13, 1973 — REHEARING DENIED APRIL 25, 1973.
In 1963 Elizabeth Flinn Cunningham died leaving a husband and son. Item 3 of her will provided:
"All of the residue of my property, of whatever character, real or personal, whether now owned or hereafter acquired, I will to Trust Company of Georgia, as Trustee, in trust nevertheless, to hold, manage, invest and dispose of the same for the following uses:
"(a) During the life of my husband, Dr. Charles Edward Cunningham, the net income from this trust shall be paid to my son, Charles Edward Cunningham, Jr., or to his descedants if he should predecease his father; provided, if my husband during his life should be without sufficient funds to provide for his proper care and support in accordance to the standard to which he has been accustomed, then I authorize and direct my Trustee to pay over to my Husband such part or all of the net income from this trust as in the opinion of my Trustee may be necessary to supplement the other funds of my husband so as to enable him to live in accordance with the standards to which he has been accustomed. If necessary for such support of my husband, I authorize my Trustee to encroach upon the corpus to such extent and so often as my Trustee deems necessary.
"(b) Upon the death of my husband my Trustee shall convey the corpus then remaining in its hands to my son, Charles Edward Cunningham, Jr., if he is then in life, or to his descendants then living if my son should be then deceased. If any of such descendants are not of age, my Trustee shall use the income of the minor's share, and if necessary the corpus also, for support and education during non-age, conveying any remaining corpus at majority. My Trustee shall not require the appointment or qualification of a guardian but shall apply funds directly."
In 1972 Dr. Cunningham executed an assignment of his interest in the above trust to Charles E. Cunningham, Jr. and demand was made upon the trustee to deliver the corpus of the estate to Charles E. Cunningham, Jr. The demand was refused and the present action filed to require such transfer. The complaint showed the existence of three minor children of Charles E. Cunningham, Jr. and a guardian ad litem was appointed to represent their interest. The trial court entered a judgment which held that Charles E. Cunningham, Jr., as a result of the transfer of his father's interest, was vested with a perfect title to the corpus of the trust estate, that his children had no interest therein and ordered the trustee to pay over and deliver the remaining corpus of the estate to Charles E. Cunningham, Jr. In separate appeals the trustee and the plaintiff's minor children appealed.
The judgment of the trial court concluded that the termination of the trust so as to vest the remainder in the plaintiff was based upon the interest of the plaintiff's father being terminated. The appellants contend that in order for the plaintiff to have a "perfect title" to the assets in such trust he must be in life when his father's interest is terminated, not by assignment, but, by his death. "`The law favors the vesting of estates at the earliest possible time; and where there are divesting clauses in a will, the law is disposed to give them such effect as to vest the estate indefeasibly at the earliest possible moment. Language doubtful in its meaning should not be construed to lessen the fee previously devised.' Crumley v. Scales, 135 Ga. 300, 308 ( 69 S.E. 531); Daniel v. Daniel, 152 Ga. 610 ( 110 S.E. 721); Sanders v. First National Bank of Atlanta, 189 Ga. 450, 452 ( 6 S.E.2d 294)." Busbee v. Haley, 220 Ga. 874, 878 ( 142 S.E.2d 786).
Both the appellants and the appellee place great emphasis upon the decision in Sanders v. First National Bank of Atlanta, cited supra, and insist that under a proper construction of such decision a finding is demanded for them, and the issue to be determined is whether the interest in such trust of Dr. Cunningham could be waived so as to accelerate the time of finally vesting the remainder interest in Charles E. Cunningham, Jr. so as to preclude the contingent interest of the children of Charles E. Cunningham, Jr.
"A trust wherein the estate of the beneficiary is a defeasible fee, with an executory devise in favor of others limited thereon, does not become an executed trust by the arrival of the beneficiary at the age of twenty one years and by the fact that he is under no legal disabilities, but the trust continues to be executory until the time when the contingency on which the beneficiary's estate is defeasible is no longer capable of operating to defeat it." Sanders v. First Nat. Bank of Atlanta, 189 Ga. 450 (3), supra.
Code § 85-703 provides: "Remainders are either vested or contingent. A vested remainder is one limited to a certain person at a certain time, or upon the happening of a necessary event. A contingent remainder is one limited to an uncertain person, or upon an event which may or may not happen." A vested remainder may be subject to being divested. See Shedden v. Donaldson, 207 Ga. 77 ( 60 S.E.2d 158). The real question in this case is not whether the remainder interest to Charles E. Cunningham, Jr. was vested or contingent at the date of the death of testatrix, but under the terms of the will must Charles E. Cunningham, Jr. survive his father in order to be entitled to possession of the corpus of the trust.
The will provided: "Upon the death of my husband my Trustee shall convey the corpus. . . [of the trust] . . . to my son if he is then in life, or to his descendants then living if my son should be then deceased." As used in this will the phrase "if he is then in life" must be construed as "if he is at that time in life." See Fourth Nat. Bank of Columbus v. Brannon, 227 Ga. 191 ( 179 S.E.2d 232), and citations. So construed, no right of possession in the corpus of the trust would be in Charles E. Cunningham, Jr. prior to the death of the life tenant and the attempted assignment by the life tenant would not divest the children of Charles E. Cunningham, Jr. of their contingent interest in such trust. See Shedden v. Donaldson, supra.
The judgment of the trial court construing the will so as to permit the holder of the life estate to accelerate the time of vesting the right of possession in Charles E. Cunningham, Jr. must be reversed.
Judgment reversed. All the Justices concur.