Opinion
24509.
ARGUED FEBRUARY 13, 1968.
DECIDED MARCH 7, 1968.
Partitioning; construction of will. Troup Superior Court. Before Judge Knight.
Richter Birdsong, Horace E. Richter, Ketzky Hipp, Loeb Ketzky, for appellant.
Lovejoy, Mayer, Allen Quillian, H. T. Quillian, Jr., for appellee.
Where a remainder is limited to an event, whether it be a necessary event or one that may not happen, and not limited to an uncertain person, and the remainderman dies before the time to receive the estate, his heirs shall be entitled to a contingent remainder interest. The heirs or assigns of such remainderman will, upon the happening of the event, share equally with the other surviving contingent remainderman.
ARGUED FEBRUARY 13, 1968 — DECIDED MARCH 7, 1968.
While this is a partitioning of land case it also involves the construction of a will probated in 1918 upon the death of the testator which is the basis of the declaration of rights of the parties by the trial court. The paragraph of the will in question reads as follows: "I, J. P. Owens, now in my right mind do will to my wife, S.E. Owens, ... [the described property] ..., and at her death to Lillar Thrash's children, if she dies and leaves no children to go to H. D. Owens children." Mrs. S.E. Owens died in 1943. Lillar Thrash died in 1964 without having had any children. H. D. Owens had two children surviving him, Emma Frances Owens and H. D. Owens, Jr. However, Emma Frances Owens died in 1937, leaving a husband, L. B. Willets, and a daughter, Mrs. Mary Exa Willets Davis, as her only heirs. L. B. Willets quitclaimed any interest he might have inherited to his daughter, Mrs. Davis, and she brought this action for partitioning against H. D. Owens, Jr., alleging that as tenants in common, each owns an undivided one-half interest in the property. The defendant answered praying for a declaratory judgment that he had inherited the entire property under the will upon the death of Lillar Thrash without children. After a hearing, the court ruled in favor of the petitioner, awarding each a 50 percent interest in the property and appointed commissioners to partition the land. The appeal is from this judgment.
Perhaps much confusion in the decisions of this court has arisen because of the failure to understand clearly the true meaning of both Code § 85-703, which merely defines a vested remainder and a contingent remainder, and Code § 85-704, which confers rights upon the heirs of a remainderman who dies before the time arrives for possessing his estate. The latter section first says, "his heirs shall be entitled to a vested-remainder interest," and this could be true only in cases of vested remainders. But it then states his heirs are entitled to "a contingent-remainder interest when the contingency is not as to the person but as to the event." This means that the "chance" held by the remainderman, and not the property, vests in the heirs of such remainderman upon his death before the happening of the event upon which his right to the property depends. Then the last sentence provides that if the contingency is as to the person, and he shall not be in life at the time the contingency happens, his heirs shall not be entitled. It is obvious that the person must be certain in order for him to pass anything to his heirs or assigns. But if the person is certain then his contingent interest or "chance" of receiving the estate can be passed to his heirs or assigns. It comes down to the simple fact that Code § 85-704 gives to the chance of a remainderman that is limited to an event, whether it be certain to occur or may not occur, the status of property which is assignable or inheritable. It must be recognized that Code § 85-703 merely defines terms but confers no rights, while Code § 85-704 specifically confers rights upon the heirs of a remainderman who dies before time for him to receive the estate. Such rights are absolute as to the interest of the remainderman, which obviously refers to vested remainders, but as to contingent remainderman it is conferred only when the contingency is, not as to the person but, as to the event, whether certain or uncertain.
Therefore, where the remaindermen are specifically named as the children of H. D. Owens, no illumination upon the case will be gained by reading the numerous decisions such as Allen v. Whitaker, 34 Ga. 6; Olmstead v. Dunn, 72 Ga. 850; Morse v. Proper, 82 Ga. 13 ( 8 S.E. 625); Padgett v. Hatton, 200 Ga. 209 ( 36 S.E.2d 664); Britt v. Fincher, 202 Ga. 661 ( 44 S.E.2d 372), where extended discussions of vested and contingent remainders are set forth and with some possible conflict. The remainder in this case was certain as to the children of H. D. Owens, but contingent upon the uncertain event of Mrs. Thrash's dying without children. Therefore, upon the death of one of H. D. Owens' children before the death of Mrs. Thrash, its heirs inherited the interest of that child which was contingent upon the event of Mrs. Thrash's dying without children. Consequently Mrs. Mary Exa Willets Davis, being an ultimate assignee of this interest, is entitled to share the remainder estate equally with H. D. Owens, Jr., the other contingent remainderman. Thus the trial court did not err in so holding, and accordingly, the
Judgment is affirmed. All the Justices concur.