LANIER v. LANIER, Executor, et al., 218 Ga. 137, 126 S.E.2.d 776 (1962)
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Judgment affirmed. All the Justices concur, except Duckworth, C. J., and Candler, J., who dissent.
Summary
Judgment affirmed. All the Justices concur, except Duckworth, C. J., and Candler, J., who dissent.
Text
Jack P. Etheridge, Lindsay, Simons & Hayes, Eugene R. Simons, W. H. Agnor, Jack P. Turner, Pauline Cousins, John H. Hudson, contra.Heyman, Abram, Young, Hicks & Maloof, Herman Heyman, John H. Hicks, Milton Harrison, Wm. G. Grant, for plaintiff in error.
1. Even if a gift would have failed at common law as a remainder for want of a particular estate to support it, it is still good as an executory devise.
2. In executory devises to children as a class where there are children in esse at the time of the testator's death, the latter take vested interests on the death of the testator unless there is a clear manifestation of a contrary intent on the part of the testator.
3. The rule against perpetuities applies only to remoteness of vesting of title and not to postponement of enjoyment after a vesting not too remote.
Where the condition is divesting in nature, and fails due to remoteness, the defeasible fee becomes indefeasible
5. A condition in terrorem is valid where there are limitations over. A declaratory judgment action seeking to invalidate the present will violates the will's in terrorem clause and voids the plaintiffs' interest under the will.
The judgment under review is one sustaining a general demurrer to a petition for declaratory judgment.
Thomas M. Lanier, by his will as amended by a codicil, left the bulk of his estate to E. S. Lanier, Jr. and James D. Cofer as trustees for the following uses: The testator's wife, Mrs. Ethel G. Lanier, was to be provided a home with the trust paying all expenses incident to the occupation, including all taxes, assessments, bills for utilities and repairs. In addition she was to receive $200 per month for life.
In Item 4 of the codicil a discretionary support trust was created for the benefit of the testator's ". . . wife, or son, or his wife, Annice S. Lanier, or any of his children . . ." Item 4 of the will provided, "Upon the death of my wife and the death of my son, Thomas M. Lanier, Jr., and the death or remarriage of his widow, if any survive him, I desire that my estate be distributed equally, share and share alike, among the children of my son, Thomas M. Lanier, Jr. . ."
Item 9 provided, "If any of my son's children shall not be living at the time provided for the distribution to them of my estate as aforesaid, the share which would have gone to such child, if living, shall then be distributed to the lawful issue of such child, provided, however, that if such child should have died leaving no lawful issue, then that portion of my estate which could otherwise have been paid to such child shall be distributed equally among my son's other children or descendants of children, per stirpes."
Item 10 provided, "In the event that at the time provided above for the final distribution of my estate, there should be no living children of my son surviving him, nor lawful issue of such children, I desire that my entire estate be distributed equally, share and share alike, among my sisters, Mrs. Cora L. Cofer, Mrs. Velma L. Hewett, and Mrs. Lillie L. Wages, or their descendants, per stirpes, and in the event that either sister should be dead leaving no descendants surviving her, then the share of such sister shall be divided equally, share and share alike between my other two sisters or their descendants, per stirpes."
Item 11 of the codicil provided, "In the event that any beneficiary under my will shall bring any action in any court to contest the validity of my will or of any provision thereof, any bequest or benefit set out in my will in behalf of such beneficiary shall be revoked and rescinded and the share of such beneficiary shall go pro rata to the remaining beneficiaries."
The trustees were to have the power to sell or exchange parts of the testator's estate, retain any part in the form received, invest and reinvest funds which came into the trustees' hands, borrow money upon the estate, purchase securities, lease real estate, settle claims and employ whatever agents, attorneys and employees might be deemed advisable. At the time of the testator's death there were two children of Thomas M. Lanier, Jr. in being.
Thomas M. Lanier, Jr. brought suit against the executors of the will and all possible beneficiaries seeking a declaratory judgment adjudicating the validity of the will. The plaintiff contended that the will violated the rule against perpetuities, that the last legal taker should have the fee simple title vested in him, that the plaintiff and the testator's wife were the heirs at law of the testator, were the last legal takers, and that each was entitled to one-half of the disputed estate in fee. A general demurrer to the petition was sustained and to this order the plaintiff excepted.
1. Before making a determination as to whether or not the interests created violate the rule against perpetuities we must first attempt to ascertain the testator's intention as to the disposition of his property. After this determination is made, we shall then apply the rule as stated in Code Ann. 85-707 as follows, "(a) Limitations of estates may extend through any number of lives in being at the time when the limitations commence, and 21 years, and the usual period of gestation added thereafter. A limitation beyond that period the law terms a perpetuity and forbids its creation. When an attempt is made to create a perpetuity, the lab gives effect to the limitations not too remote, declaring the others void, and thereby vests the fee in the last taker under legal limitations . . ." If there is any possibility that a contingent event might happen beyond the limits set out by Code Ann. 85-707, then the limitation is too remote.
In examining a limitation over, we must look at it at the time the instrument creating the limitation takes effect. If by deed, then at the time the deed was made. If by will, then at the testator's death.
Item 4 provided, "Upon the death of my wife and the death of my son, Thomas M. Lanier, Jr., and the death or remarriage of his widow, if any survive him, I desire that my estate be distributed equally, share and share alike, among the children of my son, Thomas M. Lanier, Jr. . ."
The will under consideration further created a trust whereby the testator's wife was to receive $200 per month and a home with expenses paid. In addition, she was to receive whatever the trustees felt sufficient for her support. The testator's son, Thomas M. Lanier, Jr., his wife, Annice S. Lanier, and any of his children were to be given amounts the trustees in their sole discretion deemed proper to support them in comfort and happiness. The only interests here created were no more than charges against the estate and did not amount to an estate in themselves. See Blanchard v. Gilmore,
The plaintiff in error contends that since no antecedent estate was created the remainder must fail. The defendant in error, on the other hand, urges that Code 85-702 eliminated the need of a particular estate and that the interests here created satisfy that section. It is incorrect to refer to the interest created by Item 4 of the will as a remainder, for certainly there is no antecedent estate that will support a remainder, and while Code 85-702 provides, "No particular estate being necessary to sustain a remainder under this Code, the defeat of the particular estate for any cause does not destroy the remainder . . ." this section presupposes some estate. Thusly, we cannot agree with the defendant in error's contention that the interests created by the instrument here involved amount to an estate so as to bring into play Code 85-702. However, Code 85-502 provides, "An absolute estate may be created to commence in future, and the fee may be in abeyance without detriment to the rights of subsequent remainders. A fee may be limited upon a fee, either by deed or will, where the plain intention of the grantor or testator requires it, and no other rule of law is violated thereby." Such interest if created by will is described as an executory devise within the meaning of Code 113-816 which states, "An executory devise is such a limitation of a future estate in lands or chattels as the law admits in case of a will, though contrary to the rules of limitation in conveyances at common law." In Irvin v. Porterfield,
The will here involved provides that the estate be held, managed, invested, reinvested, and pledged as security by the trustees until the death of testator's wife and son, and the death or remarriage of any widow the son might have surviving, at which time, the estate to be distributed. There is positively no excuse for failing to see that this encompasses a period of time forbidden by Code Ann. 85-707 (a). Then follow directions as to who may take if others do not, depending upon who is in life at the remote time fixed for distribution, How could the trustee distribute until the distributee is known? How can that be known until the time arrives for such? How could the trustees distribute if the property had vested in others? I agree with counsel that Burton v. Patton,
If resort is had to texts for a full explanation of the rule we believe the soundest expressions to be found in such works is found in Gray, Rule Against Perpetuities (4th Ed.), pp. 97, 99, 200, which is cited in the motion for a rehearing. I regret to see my associates ignore this citation without attempting to explain why they reject it.
For the foregoing reasons I dissent.
1962
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This document cites
- Supreme Court of Georgia - LANDRUM et al., by Guardian, v. NATIONAL CITY BANK OF ROME, Executor, et al., 210 Ga. 316, 80 S.E.2.d 300 (1954)
- Supreme Court of Georgia - LOVE v. MCMANUS et al., 208 Ga. 447, 67 S.E.2.d 218 (1951)
- Supreme Court of Georgia - BLANCHARD, n,e GILMORE v. GILMORE et al., trustees, et al., 208 Ga. 846, 69 S.E.2.d 753 (1952)
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