Opinion
20487.
ARGUED MAY 12, 1959.
DECIDED JUNE 5, 1959.
Construction of will. Burke Superior Court. Before Judge Anderson. February 20, 1959.
Sanders, Thurmond Hester, for plaintiffs in error.
Lewis Lewis, Preston B. Lewis, contra.
The judgment of the court below construing the provision of the will here in question was not erroneous for any reason assigned.
ARGUED MAY 12, 1959 — DECIDED JUNE 5, 1959.
This is a partitioning proceeding involving title to land, brought in the Superior Court of Burke County, Georgia, by James P. Brown, individually and as guardian for his minor daughter, Barbara Culver Brown, against Emma Brinson Miller, Christine Brinson Miles, individually and in her capacity as guardian for her two minor sons, James H. Brinson III and Robert H. Brinson. The case was tried upon an agreed statement of facts, and the only question presented was the construction of Items 6 and 12 of the will of Frank L. Brinson, who died in 1904.
The will of Frank L. Brinson first gave a life estate in his property to Mrs. Mattie E. Brinson, widow of the testator. As to the tract of land here involved, by Item 6 of the will it was provided that, after the death of Mrs. Mattie E. Brinson, a second life estate was devised to James H. Brinson, son of the testator, who at the death of his mother went into possession of the property and remained in possession until his death in 1956.
Item 12 of the will provides as follows: "All the property given under the foregoing items of this will to my children, after the death of my wife, is given to said children for and during the term of their natural life only and after their death to their children, or representatives of deceased children per stirpes. Should either of my said children die leaving no child or children or descendants of children, then the property given to such child or children shall go to my other children share and share alike, the child or children of any deceased child to take the parent's share per stirpes." It is this provision of the will that must be construed in this case.
At his death, Frank L. Brinson left surviving five children. We are here concerned, however, only with James H. Brinson, a son to whom was devised a life interest in the land here in question with remainder to his children. At the time of the death of the testator, James H. Brinson had no children. Thereafter, there were born to him three children, Lois Brinson Brown who married the petitioner James P. Brown, James H. Brinson, Jr., and Emma Brinson Miller. Lois Brinson Brown and James H. Brinson, Jr., died before the death of the second life tenant. James H. Brinson, Jr., left surviving two sons, who are parties to this case.
Lois Brinson Brown, through whom petitioners claim an interest in the land here involved, died intestate in 1939. Her heirs at law were her husband, James P. Brown, and her son, Billy Brown. Thereafter, James P. Brown remarried and had a child, Barbara Culver Brown, one of the petitioners in this case. Thereafter, and prior to the death of the second life tenant, Billy Brown died intestate leaving as his heirs at law the petitioners in this case, James P. Brown, his father, and Barbara Culver Brown, his half-sister. James H. Brinson then died in 1956. The petitioners, therefore, claim to have inherited from Lois Brinson Brown and Billy Brown a one-third interest in the tract of land here involved.
The defendants in this case are Christine Miles, widow of James H. Brinson, Jr., deceased son of James H. Brinson, and James H. Brinson III and Robert H. Brinson, children of James H. Brinson, Jr., and Emma Brinson Miller, sole surviving child of James H. Brinson, Sr., the second life tenant.
The determining question in this case is whether the remainder to the children of James H. Brinson, Sr., was vested prior to the death of Lois Brinson Brown, or was contingent until the death of James H. Brinson, Sr. The court below held that the remainder was a vested remainder, and that the petitioners were entitled to a one-third interest in the land in question, and a writ of partitioning was issued and other relief granted. The plaintiffs in error except to this judgment.
The only question involved in the construction of this will is whether the remainder over to the grandchildren was vested prior to the death of Lois Brinson Brown or whether it was contingent until the death of James H. Brinson, Sr., the second life tenant. If the remainder vested in the grandchildren prior to the death of Lois Brinson Brown, then her interest descended to her heirs at law, and through them to the petitioners in this case. If the remainder was contingent upon the survival of a grandchild or descendant of a grandchild until the death of the second life tenant, then Lois Brinson Brown and Billy Brown, having predeceased the second life tenant leaving no descendants, took no interest in the property which the heirs at law could inherit, and the property passed to the plaintiffs in error.
Under the provisions of our law and especially Code §§ 85-704 and 85-708, and under the decisions of this court, it is well established that in Georgia the policy of the law is to favor the vesting of remainders at the earliest possible time unless the intention of the testator is clearly manifest to the contrary. Thomas v. Owens, 131 Ga. 248 ( 62 S.E. 218). In the instant case, the language ". . . is given to said children for and during the term of their natural lives only, and after their death to their children . . ." without more would clearly and indisputably give to the grandchildren a vested remainder in the estate of their grandfather, which would vest at the time of the birth of the first grandchild, subject to open and let in afterborn grandchildren. Crawley v. Kendrick, 122 Ga. 183 ( 50 S.E. 41, 2 Ann. Cas. 643); Harris v. McDonald, 152 Ga. 18, 25 ( 108 S.E. 448); McDougald v. Kennedy, 203 Ga. 144 ( 45 S.E.2d 654). It is contended however that the language, "or representatives of deceased children, per stirpes," shows an intention on the part of the testator to create a contingent remainder, which would not vest until the death of the second life tenant, and that, since this granddaughter died before the second life tenant, leaving one son who likewise predeceased the second life tenant, leaving no descendants, there was nothing for the petitioners to inherit since no estate was ever vested in the granddaughter or her representatives. We can not agree with this contention. Where an instrument is susceptible to two constructions, the one favorable to vested and unfavorable to contingent remainders should be adopted. Fields v. Lewis, 118 Ga. 573 ( 45 S.E. 437). Divesting clauses, especially as to remainders, following the grant of an absolute estate should be strictly construed so as to vest the estate absolutely at the earliest possible time. Sumpter v. Carter, 115 Ga. 893 ( 42 S.E. 324, 60 L.R.A. 274); Munford v. Peeples, 152 Ga. 31, 37 ( 108 S.E. 454); Martin v. Citizens Bank, 180 Ga. 741, 746 ( 180 S.E. 734). The language here under construction might be subject to two constructions. It is certainly subject to the construction that the time referred to when representatives might take under the will was the death of the testator. Crumley v. Scales, 135 Ga. 300 ( 69 S.E. 531). That is, if, at the date of the death of the testator, there is a deceased grandchild who left surviving descendants, these descendants were substituted devisees who would take their parent's share. Crawley v. Kendrick, 122 Ga. 183, supra; Fields v. Lewis, 118 Ga. 573, supra; Crossley v. Leslie, 130 Ga. 782 ( 61 S.E. 851, 14 Ann. Cas. 703).
In this connection it is significant to note that in Crawley v. Kendrick, supra, a case arising in a county which was, at the time the will in the instant case was executed, in the same judicial circuit in which the testator lived, and which was decided just six months before the will in the instant case was executed, it was held that a devise to children as a class did not include grandchildren whose parent died prior to the death of the testator. It is reasonable to believe that the scrivener of this will, who was obviously someone familiar with legal matters, having Crawley v. Kendrick, supra, fresh in his memory, inserted the language with reference to representatives of deceased children to avoid the consequences of Crawley v. Kendrick, supra. The circumstances surrounding the execution of a will must be considered in determining the intention of the testator. Crumley v. Scales, 135 Ga. 300, supra; Sumpter v. Carter, 115 Ga. 893, supra.
We therefore hold that, since, at the death of the testator, James H. Brinson had no children, the provision of the will here in question created a contingent remainder until the birth of a child to James H. Brinson; that at that time the remainder vested in the child, subject to open and let in afterborn children, and subject to be defeated by the death of James H. Brinson without any child or descendant of any child surviving him. Crossley v. Leslie, 130 Ga. 782, supra. It therefore follows that Lois Brinson Brown at her birth took a vested-remainder interest in the land here in question, subject to being defeated by an event which did not occur and the possibility of which is now extinct, and that at her death it descended to her heirs at law, James P. Brown and Billy Brown, and, upon the death of Billy Brown, his interest descended to his heirs at law, James P. Brown and Barbara Culver Brown, the petitioners in this case.
It therefore follows, the Judgment of the court below was not error for any reason assigned.
Judgment affirmed. All the Justices concur.