Limitations over to "heirs," "heirs of the body," "lineal heirs," "lawful heirs," "issue," or words of similar meaning shall be held to mean "children" whether the parents are alive or dead. Under such words the children and the descendants of deceased children by representation in being at the time of the vesting of the estate shall take.
(Orig. Code 1863, § 2229; Code 1868, § 2223; Code 1873, § 2249; Code 1882, § 2249; Civil Code 1895, § 3084; Civil Code 1910, § 3360; Code 1933, § 85-504.)
Law reviews.- For article discussing problems in construction of instrument conveying gift to a group or class, see 6 Ga. St. B.J. 169 (1969). For article, "Descendible Future Interests in Georgia: The Effect of the Preference for Early Vesting," see 7 Ga. L. Rev. 443 (1973). For article surveying legislative and judicial developments in Georgia's will, trusts, and estate laws, see 31 Mercer L. Rev. 281 (1979). For comment on Walters v. Donaldson, 184 Ga. 45, 191 S.E. 429 (1937), see 5 Ga. B.J. 64 (1943). For comment on Brooks v. Williams, 227 Ga. 59, 178 S.E.2d 880 (1970), see 23 Mercer L. Rev. 399 (1972).
JUDICIAL DECISIONSANALYSIS
General Consideration
Purpose and effect of section.
- This statute works a radical change in the prior law by making certain words and phrases, or other like words, always import purchase and not limitation when used in limitations over. According to the Rule in Shelley's Case, such words, so used, would generally be taken as words of limitation and not of purchase. This statute totally extirpates that celebrated rule, and establishes the very reverse of its doctrine, as to all limitations over. Ewing v. Shropshire, 80 Ga. 374, 7 S.E. 554 (1888) (see O.C.G.A. § 44-6-23).
Section enlarges class of remaindermen.
- Statute introduces children of deceased children into the class, and its effect upon the general rule is to enlarge the class of remaindermen, when designated as heirs, lawful heirs, or the like, so as to include children of deceased children. Lumpkin v. Patterson, 170 Ga. 94, 152 S.E. 448 (1930) (see O.C.G.A. § 44-6-23).
Effect upon Rule in Shelley's Case.
- This statute, which provides that any descriptions which embrace children will enable the children to take, if the children are in being at the time of the vesting of the estate, is an obstacle to any possible application of the Rule in Shelley's Case to a conveyance with the remainder limited to heirs, lineal heirs, lawful heirs, issue, or the like. Ewing v. Shropshire, 80 Ga. 374, 7 S.E. 554 (1888) (see O.C.G.A. § 44-6-23).
Code abrogates the Rule in Shelley's Case, wipes it out utterly as a rule of law in limitations over, but this is only as to conveyances executed since 1862. Wilkerson v. Clark, 80 Ga. 367, 7 S.E. 319, 12 Am. St. R. 258 (1888).
This statute worked a radical change in the prior law, and modified the Rule in Shelley's Case by making the words, "heirs," "heirs of body," and words of similar import, always import purchase and not limitation when used in limitation over. McArthur v. Bone, 183 Ga. 796, 189 S.E. 831 (1937) (see O.C.G.A. § 44-6-23).
A conveyance "to B for life, remainder to his heirs" gave B a fee simple estate by the Rule in Shelley's Case. The law is now to the contrary in Georgia. Raines v. Duskin, 247 Ga. 512, 277 S.E.2d 26 (1981).
A deed to A for life and after A's death to the heirs of A, or to devisee if A should make a will and dispose of the same is a life estate with remainder over, and not a conveyance to A and A's children or issues, and falls directly within the terms of this statute. Brown v. Brown, 97 Ga. 531, 25 S.E. 353, 33 L.R.A. 816 (1895); Wright v. Hill, 140 Ga. 554, 79 S.E. 546 (1913); Bush v. Williams, 141 Ga. 62, 80 S.E. 286 (1913) (see O.C.G.A. § 44-6-23).
Under this statute, a deed to A, and at A's decease to A's child or children or representative of child or children as A may leave in life, conveys a life estate to A, with remainder to the designated remaindermen. Goodrich v. Pearce, 83 Ga. 781, 10 S.E. 451 (1889); King v. McDuffie, 144 Ga. 318, 87 S.E. 22 (1915); Megahee v. Hatcher, 146 Ga. 498, 91 S.E. 677 (1917); Edwards v. Edwards, 147 Ga. 12, 92 S.E. 540 (1917); Stanley v. Reeves, 149 Ga. 151, 99 S.E. 376 (1919) (see O.C.G.A. § 44-6-23).
Rule where conveyance has no limitation over.
- Grants to one and the heirs of one's body, or one's bodily heirs, or one's heirs by a particular person, convey an absolute fee, when the conveyance contains no limitation over. In that class of cases, the expression "bodily heirs" or words of similar import are words of limitation and not of purchase, and are inoperative to qualify or limit the character of the estate that passes under the deed. Rainey v. Spence, 185 Ga. 763, 196 S.E. 416 (1938).
While a gift or grant to A and the heirs of A's body, or words of similar import, operates to vest the full fee simple title in A, that rule would not apply when a less estate has been carved out, and the term "heirs of his body" is used in connection with a limitation over in remainder. McArthur v. Bone, 183 Ga. 796, 189 S.E. 831 (1937).
Grant or devise without a limitation over, not to A and A's "heirs," or "heirs of her body," but to A and A's children, where there are no children at the time the instrument becomes effective, operates to vest full fee simple title in A. Singer v. First Nat'l Bank & Trust Co., 195 Ga. 269, 24 S.E.2d 47 (1943).
Meaning of statute.
- This statute means that in limitations over, as, for instance, in a devise to A for life and at A's death to A's heirs, such words shall give a vested remainder to the children of A at the testator's death and who might afterwards be born, and in case any such child dies in the lifetime of the life tenant, the deceased child's descendants in esse when the life estate falls in shall take the share by representation; just as is now done in an express devise in remainder to the children of A and to the descendants of such children who die before the life tenant. Both of the devises, being defeasible vested remainders in the children, are clearly distinguishable from a devise in remainder to the children of A as a class. Crawley v. Kendrick, 122 Ga. 183, 50 S.E. 41, 2 Ann. Cas. 643 (1905) (see O.C.G.A. § 44-6-23).
This statute is expressly confined to limitations over, in which the enumerated words of limitation are used, and was solely intended to change the common law as to such limitations over, by changing these words into words of purchase, so as to cut down the first taker's estate to a life tenancy and include all persons who could fall within these words as words of purchase. Crawley v. Kendrick, 122 Ga. 183, 50 S.E. 41, 2 Ann. Cas. 643 (1905) (see O.C.G.A. § 44-6-23).
"Limitation over" construed.
- A "limitation over" in the sense intended by this statute includes any estate in the same property created or contemplated by the conveyance to be enjoyed after the first estate granted expires or is exhausted. Thus in a gift to A for life, remainder to the heirs of A's body, the remainder is "a limitation over" to the heirs of the body, and under this statute the children of A and the descendants of deceased children would take the remainder as purchasers. And the same persons would take the same estate in the same capacity were the remainder limited to heirs, lineal heirs, lawful heirs, issue, or the like. Ewing v. Shropshire, 80 Ga. 374, 7 S.E. 554 (1888); Rainey v. Spence, 185 Ga. 763, 196 S.E. 416 (1938); Lane v. Citizens & S. Nat'l Bank, 195 Ga. 828, 25 S.E.2d 800 (1943); Dodson v. Trust Co., 216 Ga. 499, 117 S.E.2d 331 (1960) (see O.C.G.A. § 44-6-23).
When two or more estates of freehold in the same property are granted by the same conveyance to be enjoyed successively, or one in lieu of another, each of them, except the first, is a limitation over. Ewing v. Shropshire, 80 Ga. 374, 7 S.E. 554 (1888); Lane v. Citizens & S. Nat'l Bank, 195 Ga. 828, 25 S.E.2d 800 (1943).
Section inapplicable to adoption rights.
- This statute was enacted only as a rule of property different from the former law, and does not purport to deal in any manner with the adoption of children or with any right flowing from such adoption. Comer v. Comer, 195 Ga. 79, 23 S.E.2d 420 (1942).
Cited in Herring v. Rogers, 30 Ga. 615 (1860); Butler v. Ralston, 69 Ga. 485 (1882); Cooper v. Mitchell Inv. Co., 133 Ga. 769, 66 S.E. 1090, 29 L.R.A. (n.s.) 291 (1910); Burch v. King, 14 Ga. App. 153, 80 S.E. 664 (1914); Rogers v. Smith, 145 Ga. 234, 88 S.E. 963 (1916); Rumble v. Strange, 154 Ga. 512, 114 S.E. 881 (1922); Bristol Sav. Bank v. Nixon, 169 Ga. 282, 150 S.E. 148 (1929); Aiken v. Baynes, 170 Ga. 784, 154 S.E. 451 (1930); Ward v. Ward, 176 Ga. 849, 169 S.E. 120 (1933); Aycock v. Williams, 185 Ga. 585, 196 S.E. 54 (1938); Curtis v. Moss, 189 Ga. 165, 5 S.E.2d 654 (1939); Jones v. Federal Land Bank, 189 Ga. 419, 6 S.E.2d 52 (1939); Deck v. Deck, 193 Ga. 739, 20 S.E.2d 1 (1942); English v. Davis, 195 Ga. 89, 23 S.E.2d 394 (1942); Patellis v. Tanner, 197 Ga. 471, 29 S.E.2d 419 (1944); Cooper v. Littleton, 197 Ga. 381, 29 S.E.2d 606 (1944); Padgett v. Hatton, 200 Ga. 209, 36 S.E.2d 664 (1946); Smith v. Smith, 200 Ga. 373, 37 S.E.2d 367 (1946); Brooks v. Williams, 227 Ga. 59, 178 S.E.2d 880 (1970); Dunn v. Sanders, 243 Ga. 684, 256 S.E.2d 366 (1979); McGill v. McGill, 247 Ga. 428, 276 S.E.2d 587 (1981).
Words of Similar Import
Terms are words of purchase.
- Words in the first sentence were previously construed as words of limitation; but subsequently to the adoption of the Code of 1863 those words and words of similar import were construed to mean children, and that word has been taken as a word of purchase, and not of limitation. Lumpkin v. Patterson, 170 Ga. 94, 152 S.E. 448 (1930).
In a deed or devise to "A for life," with remainder to "his heirs," or words of like import, the words "his heirs" are words of purchase, and not of limitation, and the instrument creates two estates, one to A for life, and at A's death another estate to A's children. Cooper v. Harkness, 188 Ga. 121, 2 S.E.2d 918 (1939).
Effect if children are in esse at time of vesting.
- "Children" or words made of that import are words of purchase if the children are in esse at the time of vesting, otherwise the common law is unchanged and they are words of limitation. Cooper v. Mitchell Inv. Co., 133 Ga. 769, 66 S.E. 1090, 29 L.R.A. (n.s.) 291 (1910).
"Heirs at law" is a phrase of description, under which are to be determined the substitute takers in the event the name taker fails to qualify as tenant. The phrase is referable to the testator, and the persons who may ultimately take by reason of being within its description take directly from the testator, as purchasers. Cooper v. Harkness, 188 Ga. 121, 2 S.E.2d 918 (1939).
"Heirs at law" construed.
- Whenever the words "heirs at law" are found in a will, unaccompanied by any qualifying or explanatory expressions, those words will be given the meaning which the law ordinarily gives those words, and only the persons will come within the class thus described who would take the property of the decedent under the statute of distributions if there had been no will. Cooper v. Harkness, 188 Ga. 121, 2 S.E.2d 918 (1939).
Words "heirs at law" must be treated as words of similar import to those mentioned in this statute. Lane v. Citizens & S. Nat'l Bank, 195 Ga. 828, 25 S.E.2d 800 (1943) (see O.C.G.A. § 44-6-23).
Terms "heirs" and "lawful heirs" necessarily mean the same as "heirs at law." No one can be an "heir" or a "lawful heir" unless one is made so by law, there being no absolute right on the part of anyone to inherit from another, and all inheritance being the result of a statute, of "law." Lane v. Citizens & S. Nat'l Bank, 195 Ga. 828, 25 S.E.2d 800 (1943).
Since the words "heirs at law" are words of similar import to those listed in this statute, the words must be construed as meaning children and the descendants of children, no intention to the contrary being manifested. Dodson v. Trust Co., 216 Ga. 499, 117 S.E.2d 331 (1960) (see O.C.G.A. § 44-6-23).
"Legal heirs" construed.
- Statute established the meaning of the words "legal heirs" (being words of similar import to those contained in the section) to be children and the descendants of children. Dodson v. Trust Co., 216 Ga. 499, 117 S.E.2d 331 (1960) (see O.C.G.A. § 44-6-23).
"Living heirs" construed.
- Words "and her living heirs," as used in a legacy to K "and her living heirs," are to be taken as words of purchase, if, at the time of the execution of the will and at the time of the death of the testatrix, K had two living children, and under such a construction, these children, together with their mother, all took equal shares as tenants in common in the property left by the legacy. McArthur v. Bone, 183 Ga. 796, 189 S.E. 831 (1937).
When there is no limitation over, so as to come within the provisions of this statute, the words, "heirs," "heirs of body," etc., imply limitation and not purchase; but addition of the word "living" to the word "heirs" (so that devise was "to K and her living heirs") would operate to change the rule. McArthur v. Bone, 183 Ga. 796, 189 S.E. 831 (1937) (see O.C.G.A. § 44-6-23).
"Bodily heirs," or words of similar import, are held to mean children. Craig v. Ambrose, 80 Ga. 134, 4 S.E. 1 (1887); Stanley v. Reeves, 149 Ga. 151, 99 S.E. 376 (1919); Thomas v. Berry, 151 Ga. 7, 105 S.E. 478 (1921); Starnes v. Sanders, 151 Ga. 632, 108 S.E. 37 (1921).
"Heirs by a particular person".
- In cases where there is a limitation over to heirs or issue, the words "heirs or issue" shall be held to mean children. But grants to one and "her heirs by a particular person," or "her issue" (as distinguished from a grant to A for life with limitation over to A's issue) convey an absolute estate, to the exclusion of any children that may be in life at the time of the conveyance. Johnson v. Sirmans, 69 Ga. 617 (1882); Whatley v. Barker, 79 Ga. 790, 4 S.E. 387 (1887); Ewing v. Shropshire, 80 Ga. 374, 7 S.E. 554 (1888); McCraw v. Webb, 134 Ga. 579, 68 S.E. 324 (1910).
"Children" does not mean grandchildren.
- Word "children" has never included grandchildren. The term only embraces the first generation. Willis v. Jenkins, 30 Ga. 167 (1860).
"Heirs of the body" means children.
- Under this statute the words "heirs of the body" mean children, and not grandchildren. Baynes v. Aiken, 166 Ga. 898, 144 S.E. 736 (1928) (see O.C.G.A. § 44-6-23).
Taking by Children and Descendants
"The time of the vesting of the estate," mentioned in this statute, when the children and descendants of deceased children, by representation, take the estate in remainder absolutely, must mean the vesting of the remainder in possession at the life tenant's death, in order to give the words a proper and legal sense. Crawley v. Kendrick, 122 Ga. 183, 50 S.E. 41, 2 Ann. Cas. 643 (1905) (see O.C.G.A. § 44-6-23).
Time for determining heirs at law.
- Language in this statute, to wit, "in being at the time of the vesting of the estate," refers to "the descendants of deceased children, by representation," and does not refer to and does not qualify the word "children." In other words, this statute properly punctuated in the second sentence, means that "children" shall take in the instances enumerated, and that "the descendants of deceased children, by representation, in being at the time of the vesting of the estate, shall take." Lumpkin v. Patterson, 170 Ga. 94, 152 S.E. 448 (1930) (see O.C.G.A. § 44-6-23).
Man has heirs at law who inherit from him at only one time and that is at the moment of death. Prior to death, his children and possibly his wife, and if none of these his next kin, are heirs expectant and have no vested inheritable rights. They continue to be heirs only because they attained that identity at their ancestor's death. Raney v. Smith, 242 Ga. 809, 251 S.E.2d 554 (1979).
Title must have vested in child for descendants to take.
- When the estate is a vested remainder in the children, defeasible only upon the contingency of their dying in the lifetime of the life tenant, leaving children, no descendants of a deceased child could take under it by representation, unless their parent was seized of a vested interest in the lifetime of the life tenant. Crawley v. Kendrick, 122 Ga. 183, 50 S.E. 41, 2 Ann. Cas. 643 (1905); Lumpkin v. Patterson, 170 Ga. 94, 152 S.E. 448 (1930).
This statute means that title to the remainder must first have vested in a child before the descendants of such child could take by purchase under the instrument by representation. If title had first vested, then, whether the deceased remainderman be alive or dead at the time of the vesting of the estate in possession at the death of the life tenant, descendants of deceased children would take by representation as purchasers under the instrument. Britt v. Fincher, 202 Ga. 661, 44 S.E.2d 372 (1947) (see O.C.G.A. § 44-6-23).
Child need not be in esse at time of vesting of possession.
- Child or children having already taken during the existence of the life estate a vested remainder, it is not necessary for such child or children to be in esse at the time of the vesting of the estate in possession when the life estate ended, in order for her heirs to take by inheritance. The foregoing is subject to the rule that the vested remainder, in such case, may open and take in other children who may be born subsequently to the death of the testator and prior to the death of the life tenant. Lumpkin v. Patterson, 170 Ga. 94, 152 S.E. 448 (1930).
Deceased child with no descendants.
- Under a deed from a father conveying real property to his daughter "for and during her natural life, and at her death to her heirs," where the life tenant gave birth to only one child, and it was born dead, the husband did not take the property as her sole heir, but the remainder estate failed; for no estate beyond that granted to the life tenant passed out of the grantor, and, upon the death of the life tenant and the failure of the remainder, the grantor or his heirs were entitled to the property. Beasley v. Calhoun, 178 Ga. 613, 173 S.E. 849 (1934).
First taker must have less than fee simple.
- Before the heirs will take as children, there must be an estate less than a fee simple in the parent or the first taker. Munford v. Peeples, 152 Ga. 31, 108 S.E. 454 (1921).