Opinion
21982.
ARGUED MARCH 11, 1963.
DECIDED MARCH 25, 1963.
Construction of will. Laurens Superior Court. Before Judge Ward.
Nelson Nelson, Carl K. Nelson, Jr., for plaintiffs in error.
H. Dale Thompson, contra.
In a will providing that upon the termination of a life estate for a widow, the realty in question shall be sold and the proceeds of the sale "divided among my surviving children," the words of survivorship refer to the death of the testator, in order to vest the remainders in the children, no manifest intention to the contrary appearing in the will.
ARGUED MARCH 11, 1963 — DECIDED MARCH 25, 1963.
Involved here is a construction of Items III and IV of the will of Joe Frank Graham, which read as follows: " ITEM III: I will, give and devise to my beloved wife, Mrs. Maggie Beall Graham, for and during her natural life, the following described realty: [describing tracts consisting of 356 acres]." " ITEM IV: Upon the determination of the life estate created for my wife by Item III hereof, or in the event she predeceases me and said estate does not vest, I direct that the said described lands, consisting of my home place where I now live, be sold in one body, by the surviving executors, to the highest and best bidder for cash, eith[er] at public or private sale, whichever in the judgment of the said executors will bring the highest price; and that the proceeds of the sale of said lands and home place shall be divided among my surviving children, and the children of my deceased children, per stirpes."
The question presented is whether the children who survived the testator, took, at his death, a vested remainder estate. If so, the petitioner, Mrs. H. B. Graham, the widow of one of his sons, is entitled to her deceased husband's 1/8th interest in the proceeds of the sale of the property.
The case was tried before the judge upon an agreed statement of facts, which were that the testator died survived by his widow and five of his eight children, one of whom was H. B. Graham; that H. B. Graham died prior to the death of his mother and was survived by his widow who was without children; that after probate of the will of Joe Frank Graham and the death of the widow, the property was sold by defendants, administrators de bonis non cum testamento annexo and the proceeds were partially distributed but no part was given petitioner, Mrs. H. B. Graham.
The trial judge overruled general demurrers to the petition and awarded to petitioner her deceased husband's 1/8th interest in the property subject to certain expenses. Exception is made to that judgment.
This court in a unanimous opinion in the case of Crossley v. Leslie, 130 Ga. 782 (5) ( 61 S.E. 851, 14 AC 703), construing language in a will practically identical to that used here, held that each child living at the death of the testator took a vested remainder estate. The language there was: "I give and bequeath to my wife, Patience Leslie, the following property, viz [describing it] ... for and during her natural life, and after her death to be sold, and the proceeds to be equally divided between my surviving children and the children of any of my deceased children." Here, as there, upon the termination of the life estate the will directs that the property be sold and that the proceeds of the sale be divided among surviving children and children of any deceased child.
The Crossley case, supra, follows the two old cases of McGinnis v. Foster, 4 Ga. 377, and Vickers v. Stone, 4 Ga. 461, where this court held under similar language that children of the testator in life at his death took vested remainders under his will. The ruling in the Crossley case, supra, has been followed in Mendel v. Stein, 144 Ga. 107 ( 86 S.E. 220), and cited approvingly many times. Munford v. Peeples, 152 Ga. 31, 39 ( 108 S.E. 454); Ham v. Jarrell, 158 Ga. 77, 80 ( 122 S.E. 773); Hightower v. Hodges, 166 Ga. 639 (1) ( 144 S.E. 27); Gilmore v. Gilmore, 197 Ga. 303, 316 ( 29 S.E.2d 74); Miller v. Brown, 215 Ga. 148, 151 ( 109 S.E.2d 741).
The reasoning given by this court for the conclusion reached in those cases is sound, and the request of counsel that Crossley v. Leslie, 130 Ga. 782 (5), supra, be overruled is denied. "The law favors the vesting of remainders in all cases of doubt. In construing wills, words of survivorship shall refer to the death of the testator in order to vest remainders, unless a manifest intention to the contrary shall appear." Code § 85-708. This court in the Crossley case, supra, considered language practically identical to that used here and ruled that a manifest intention to the contrary does not appear by reason of the provision that upon the death of the life tenant, the property was "to be sold, and the proceeds to be equally divided between my surviving children ..." Neither does "a manifest intention to the contrary" appear from any other provision of the will of Joe Frank Graham. Cf. Shedden v. Donaldson, 207 Ga. 77 ( 60 S.E.2d 158). The judgment complained of is not erroneous for any reason assigned.
Judgment affirmed. All the Justices concur.