(Laws 1799, Cobb's 1851 Digest, p. 167; Laws 1821, Cobb's 1851 Digest, p. 169; Code 1863, § 2230; Code 1868, § 2224; Code 1873, § 2250; Code 1882, § 2250; Civil Code 1895, § 3085; Civil Code 1910, § 3661; Code 1933, § 85-505; Ga. L. 1984, p. 22, § 44.)
Law reviews.- For article, "Estates Tail in Georgia," see 13 Ga. B.J. 27 (1950). For article surveying real property law, see 34 Mercer L. Rev. 255 (1982). 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
Estate tail never presumed.
- Estates tail being illegal, the law will never presume or imply such an estate. Ewing v. Shropshire, 80 Ga. 374, 7 S.E. 554 (1888).
Clear intention to create estate tail required.
- By this statute, before an estate tail can be held to be created by any words in a will, those words must show such intention in the testator's mind very clearly. Gibson v. Hardaway, 68 Ga. 370 (1882) (see O.C.G.A. § 44-6-24).
Test for creation of estate tail.
- Question whether or not an estate tail is created is always resolvable into two others, of which one is, what persons are intended to take the property and the other is, do these persons constitute a class, having succession from generation to generation, and to the end of the blood? Gaboury v. McGovern, 74 Ga. 133 (1884).
To create an estate tail, the limitation over must be to the heirs, general or special, of the holder of the freehold to be affected. Smith v. Collins, 90 Ga. 411, 17 S.E. 1013 (1892).
Intent deduced from whole instrument.
- Devise to "the children of my first wife and their children after them" created an estate in remainder rather than an estate tail, for the law will never presume an estate tail if a remainder was likely intended, as deduced from the instrument as a whole. Cooper v. Mitchell Inv. Co., 133 Ga. 769, 66 S.E. 1090, 29 L.R.A. (n.s.) 291 (1910); Phinizy v. Wallace, 136 Ga. 520, 71 S.E. 896 (1911).
Section applicable to personalty.
- Bequests of personal property expressed in such terms as would have passed an estate tail by the Statute De Donis Conditionalibus, will vest in the persons to whom they are made an absolute, unconditional, fee simple estate. Gray v. Gray, 20 Ga. 804 (1856).
No distinction as to creation of estate by will or deed.
- This statute makes no distinction as to whether such estates are created by deed or by will. Baird v. Brookin, 86 Ga. 709, 12 S.E. 981, 12 L.R.A. 157 (1891) (see O.C.G.A. § 44-6-24).
Section inapplicable to fee conditional estate.
- When estate is given to the widow during her widowhood to be divided between her and the testator's children upon her marriage, and if she should die without children by second marriage, her part to go to testator's children, this did not create an estate tail so as to become a fee simple under this statute. It created a fee conditional estate. Clements v. Glass, 23 Ga. 395 (1857) (see O.C.G.A. § 44-6-24).
Or to determinable fee.
- Devise to T, T's heirs, executors, and assigns forever, except should T die "without lineal descendants" to go over to X, does not create an estate tail, because it cannot be inferred that "lineal descendants" created an estate in perpetuity; for the estate of the first taker is to be a fee simple excluding the "lineal descendants," if T dies with lineal descendants, but if T does not die with them, the property is to go over. There is no entailment, devisor leaving it to devisee to provide for devisee's own issue, and hence this statute has no application. Forman v. Troup, 30 Ga. 496 (1860); Burton v. Black, 30 Ga. 638 (1860) (see O.C.G.A. § 44-6-24).
Devise to D "and her child or children, should she have any," with remainder over to X, should she die leaving no children or grandchildren, creates a determinable fee in D and not an estate tail. Greer v. Pate, 85 Ga. 552, 11 S.E. 869 (1890).
Devise in a will to J in fee simple, "and should my son J die without leaving any child or children, to revert back to my estate to be sold," conveys to J an estate in fee, defeasible on J's dying childless. Kinard v. Hale, 128 Ga. 485, 57 S.E. 761 (1907).
Estate tail converted to absolute fee.
- See Hose v. King, 24 Ga. 424 (1858); Wayne v. Lawrence, 58 Ga. 15 (1877); Johnson v. Sirmans, 69 Ga. 617 (1882); Craig v. Ambrose, 80 Ga. 134, 4 S.E. 1 (1887); Whatley v. Barker, 79 Ga. 790, 4 S.E. 387 (1887); Griffin v. Stewart, 101 Ga. 720, 29 S.E. 29 (1897); Ellis v. Gray, 110 Ga. 611, 36 S.E. 97 (1900); McCraw v. Webb, 134 Ga. 579, 68 S.E. 324 (1910); Stamey v. McGinnis, 145 Ga. 226, 88 S.E. 935 (1916); Perkins v. Perkins, 147 Ga. 122, 92 S.E. 875 (1917); Lane v. Cordell, 147 Ga. 100, 92 S.E. 887 (1917); Harper v. John Hancock Mut. Life Ins. Co., 173 Ga. 51, 159 S.E. 687 (1931); Cole v. Ogg, 180 Ga. 343, 179 S.E. 116 (1935).
Estates made determinable fees or life estates with remainders over.
- See Gibson v. Hardaway, 68 Ga. 370 (1882); Daniel v. Daniel, 102 Ga. 181, 28 S.E. 167 (1897); Chewning v. Shumate, 106 Ga. 751, 32 S.E. 544 (1899); Hertz v. Abrahams, 110 Ga. 707, 36 S.E. 409, 50 L.R.A. 361 (1900); English v. Davis, 195 Ga. 89, 23 S.E.2d 394 (1942).
Cited in Mallery v. Dudley, 4 Ga. 52 (1848); Kemp v. Daniel, 8 Ga. 385 (1850); Robert v. West, 15 Ga. 122 (1854); Smith v. Dunwoody, 19 Ga. 237 (1856); Childers v. Childers, 21 Ga. 377 (1857); Carroll v. Carroll, 25 Ga. 260 (1858); Andrews v. Bonner, 26 Ga. 520 (1858); Brown v. Weaver, 28 Ga. 377 (1859); Caraway v. Smith, 28 Ga. 541 (1859); Ford v. Cook, 73 Ga. 215 (1884); Wilkerson v. Clark, 80 Ga. 367, 7 S.E. 319, 12 Am. St. R. 258 (1888); Griffin v. Stewart, 101 Ga. 720, 29 S.E. 29 (1897); Hertz v. Abrahams, 110 Ga. 707, 36 S.E. 409, 50 L.R.A. 361 (1900); Hill v. Terrell, 123 Ga. 49, 51 S.E. 81 (1905); Phinizy v. Wallace, 136 Ga. 520, 71 S.E. 896 (1911); Pace v. Forman, 148 Ga. 507, 97 S.E. 70 (1918); Slappey v. Vining, 150 Ga. 792, 105 S.E. 353 (1920); Reynolds v. Dolvin, 154 Ga. 496, 114 S.E. 879 (1922); Lumpkin v. Patterson, 170 Ga. 94, 152 S.E. 448 (1930); Southwell v. Purcell, 172 Ga. 739, 158 S.E. 588 (1931); Beasley v. Calhoun, 178 Ga. 613, 173 S.E. 849 (1934); Palmer v. Atwood, 188 Ga. 99, 3 S.E.2d 63 (1939); Jones v. Federal Land Bank, 189 Ga. 419, 6 S.E.2d 52 (1939); Guess v. Morgan, 196 Ga. 265, 26 S.E.2d 424 (1943); Patellis v. Tanner, 197 Ga. 471, 29 S.E.2d 419 (1944); Folds v. Hartry, 201 Ga. 783, 41 S.E.2d 142 (1947); Brooks v. Williams, 227 Ga. 59, 178 S.E.2d 880 (1970); Whittle v. Speir, 235 Ga. 14, 218 S.E.2d 775 (1975); Worley v. Smith, 236 Ga. 888, 225 S.E.2d 911 (1976); Dunn v. Sanders, 243 Ga. 684, 256 S.E.2d 366 (1979).
Conveyance of Absolute Fee
Effect of enumerated words of entail.
- Scheme of this statute with regard to words of entail pure and simple, used as such, unqualified by concomitant or explanatory terms, is briefly this: In the examples enumerated in subsection (a) and in them only, they are words of limitation, and as the law recognizes but one species of inheritance, that of heirs general, they pass an absolute fee. In all other instances of their use, they are treated as limitations over, and the words of entail are converted into words of purchase. Ewing v. Shropshire, 80 Ga. 374, 7 S.E. 554 (1888) (see O.C.G.A. § 44-6-24).
Terms are not words of purchase.
- Words creating estates tail as enumerated here are not intended as words of purchase because former Code 1882, § 2249 (see O.C.G.A. § 44-6-23) made the generic terms, "heirs of body" and "issue," words of purchase only in "limitations over." Ewing v. Shropshire, 80 Ga. 374, 7 S.E. 554 (1888).
Although in cases when there is a limitation over to heirs or issue, the words "heirs or issue" shall be held to mean children under former Civil Code 1895, § 3084 (see O.C.G.A. § 44-6-23), granted to one and "her heirs by a particular person," or "her issue," convey an absolute estate under former Civil Code 1895, § 3085 (see O.C.G.A. § 44-6-24) to the exclusion of any children that may be in life at the time of the conveyance. The grant being to her, "her heirs and issue by W," the combination of two sets of words of limitation cannot by any sort of legal alchemy convert them into words of purchase. McCraw v. Webb, 134 Ga. 579, 68 S.E. 324 (1910).
Terms are words of purchase in limitation over.
- It is only when the distributive words change the line of descent marked out for property, by the words upon which they are engrafted, that the latter are taken as words of purchase. Hollifield v. Stell, 17 Ga. 280 (1855).
When a particular estate was created with a limitation over to heirs, heirs of the body, lineal heirs, lawful heirs, issue, or words of similar import, the words will be held to mean children, and hence words of purchase under former Code 1882, § 2249 (see O.C.G.A. § 44-6-23), but if a devise was made to one and one's bodily heirs, this, under the Rule in Shelley's Case, would create an estate in perpetuity, and would convey a fee simple to the devisee named. Craig v. Ambrose, 80 Ga. 134, 4 S.E. 1 (1887).
Interpretation of "heirs of the body" as words of purchase.
- While the words "heirs of the body" prima facie import an estate tail, yet notwithstanding they sound like words of limitation upon circumstances and the intention of the parties, they may be construed as words of purchase, and descriptive of the person who is to take. Evans v. Edenfield, 170 Ga. 805, 154 S.E. 257 (1930).
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, this rule would not apply if 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).
Words of "living heirs".
- If 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 the 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. § 44-6-24).
Interpretation of "heirs of the body" as words of limitation.
- Prior to the adoption of this statute, the term "heirs of the body," when used in conveyances, unless modified or controlled by qualifying or explanatory words, were words of limitation, not words of purchase. This statute leaves them still words of limitation, if no less estate than the fee is expressed, and if they are used not by way of limitation over, but of direct and immediate limitation of the estate granted. When they take effect as words of limitation, they pass not a fee tail but a fee simple. Wilkerson v. Clark, 80 Ga. 367, 7 S.E. 319, 12 Am. St. R. 258 (1888) (see O.C.G.A. § 44-6-24).
Limitation power of the term, "heirs of the body," is neither more nor less than that of "heirs," but just the same. Wilkerson v. Clark, 80 Ga. 367, 7 S.E. 319, 12 Am. St. R. 258 (1888).
Language to "the buyer, his heirs and assigns" referring to conveyance of property operates to convey an absolute fee simple only in the named purchasers. Black v. Georgia Mem. Park Cem., 173 Ga. App. 290, 325 S.E.2d 901 (1985).
Interpretation of "issue".- Words "after her death, if no lawful issue" were construed to mean without lawful issue at the death of the deceased, and to constitute a good limitations in an executory devise. Atwell Ex'rs v. Barney, 1 Dudley 207 (1831).
Devise over on failure of increase.
- Devise to A as trustee and testamentary guardian for S and S's increase "to deliver over the entire estate to E in case of failure of increase," could not mean a delivery over in case of an indefinite failure of issue, but referred to issue living at death of S. Benton v. Patterson, 8 Ga. 146 (1850). See Tucker v. Adams, 14 Ga. 548 (1854); Hollifield v. Stell, 17 Ga. 280 (1855).
Definite failure of issue prevents entailment.
- When the limitation over is upon a definite failure of issue an estate tail could never be implied, and this statute could have no application in such cases. The definiteness of the failure may be shown by the terms themselves limiting the failure to the life of the life tenant either expressly or by superadded words having that effect, as when the will designates that the executor is to make the division upon such failure. Groce v. Rittenberry, 14 Ga. 232 (1853); Claxton v. Weeks, 21 Ga. 265 (1857); Doe v. Roe, 30 Ga. 453 (1860); Forman v. Troup, 30 Ga. 496 (1860); Burton v. Black, 30 Ga. 638 (1860); Tennell v. Ford, 30 Ga. 707 (1860); Hill v. Alford, 46 Ga. 247 (1872); Matthews v. Hudson, 81 Ga. 120, 7 S.E. 286, 12 Am. St. R. 305 (1888); Greer v. Pate, 85 Ga. 552, 11 S.E. 869 (1890); Hertz v. Abrahams, 110 Ga. 707, 36 S.E. 409, 50 L.R.A. 361 (1900) (see O.C.G.A. § 44-6-24).
Meaning of "children".
- According to the English law, all the words enumerated in subsection (a) are primarily words of entail except "children," which is primarily a word of purchase. While the other words when used alone are not ambiguous, this one is; and its introduction into the clause with the others upon an apparent equality, as though it were as free as they from ambiguity, is what makes the chief difficulty of construction. According to Wilde's case, when this word is coupled in the gift or grant immediately with the ancestor, as in the language of the Code, it imports limitation, and consequently an estate tail, if there be no child or children in esse at the time of the conveyance; but otherwise, even when so connected, it is a word of purchase. Its real quality in any given instance, where it is used alone in such connection, depends upon an extrinsic fact, to wit, the existence or nonexistence at the time of the gift or grant of persons, or at least of a person to whom the word can properly be applied. The Code betrays not the slightest consciousness of this double or conditional signification of the term, but seems to treat it as if its meaning were as fixed and invariable as that of the words with which it is associated. Ewing v. Shropshire, 80 Ga. 374, 7 S.E. 554 (1888) (see O.C.G.A. § 44-6-24).
When attention is confined to the word "children" as a word of entail, the ambiguity of the word, though still existing in the law as whole, disappears from this statute and ceases to disturb it. As one of entail, the word has but a single meaning, and that alone is within the clause; consequently the clause, though apparently ambiguous, is not really so, but is wholly free from ambiguity. Ewing v. Shropshire, 80 Ga. 374, 7 S.E. 554 (1888) (see O.C.G.A. § 44-6-24).
Application of "children" limited.
- Word "children," as used in this statute, applies only when the grantee has no children in esse when the grant takes effect. Stamey v. McGinnis, 145 Ga. 226, 88 S.E. 935 (1916) (see O.C.G.A. § 44-6-24).
Effect of "children" when there are no children in esse.
- Devise to the daughters of a testator of property to be settled upon them before the consummation of any marriage, "so that the same may be enjoyed by them and their children after them;" there being no children in esse, would create an estate tail, and therefore a fee simple title would vest in the first taker under this statute. Butler v. Ralston, 69 Ga. 485 (1882) (see O.C.G.A. § 44-6-24).
Devise to X and X's children creates a tenancy in common if the children be in life, but, if they be not in life, it is an estate tail converted into a fee simple by this statute. Ewing v. Shropshire, 80 Ga. 374, 7 S.E. 554 (1888); Estill v. Beers, 82 Ga. 608, 9 S.E. 596 (1889); Baird v. Brookin, 86 Ga. 709, 12 S.E. 981, 12 L.R.A. 157 (1891); McCord v. Whitehead, 98 Ga. 381, 25 S.E. 767 (1896); Hollis v. Lawton, 107 Ga. 102, 32 S.E. 846, 73 Am. St. R. 114 (1899); Sumpter v. Carter, 115 Ga. 893, 42 S.E. 324, 60 L.R.A. 274 (1902) (see O.C.G.A. § 44-6-24).
Under this statute, a conveyance to three daughters and their children, one of them having a child at the time and the others none, passes an estate in common to the one daughter and her child, and sole estate in fee to each of the other daughters. Estill v. Beers, 82 Ga. 608, 9 S.E. 596 (1889) (see O.C.G.A. § 44-6-24).
When the testator devised to the testator's daughter certain land "to her and her children," the daughter then having no children, the daughter took an absolute estate, and children born to her after the testator's death took under the will no estate by way of remainder or otherwise. Bank of Graymont v. Kingery, 170 Ga. 771, 154 S.E. 355 (1930).
Effect of "children, should any be born".
- Legal effect of the words "and her children or child, should any be born to her," is the same as if it had been made to D and D's children (D having no children at the time), which, standing alone would create an express estate tail and invest D, under this statute, with the absolute fee. Butler v. Ralston, 69 Ga. 485 (1882); Lofton v. Murchison, 80 Ga. 391, 7 S.E. 322 (1888); Ewing v. Shropshire, 80 Ga. 374, 7 S.E. 554 (1888); Estill v. Beers, 82 Ga. 608, 9 S.E. 596 (1889); Goodrich v. Pearce, 83 Ga. 781, 10 S.E. 451 (1889); Baird v. Brookin, 86 Ga. 709, 12 S.E. 981, 12 L.R.A. 157 (1891); Davis v. Hollingsworth, 113 Ga. 210, 38 S.E. 827, 84 Am. St. R. 233 (1901) (see O.C.G.A. § 44-6-24).
Section inapplicable when "children" is word of purchase.
- Will "to C and at her death to go to her children," created an estate for life in the daughter of the testator with remainder to her children living at her death and therefore is not an entailment under this statute. Ford v. Cook, 73 Ga. 215 (1884) (see O.C.G.A. § 44-6-24).
Word "children" is a word of purchase and not of limitation, and a conveyance to a husband and wife and "to their children" carries title in fee simple to such children of the husband and wife as are in esse at the time of the conveyance, as tenants in common with their parents, even though such children are not designated by their names. This statute has no application to such a case. Keith v. Chastain, 157 Ga. 1, 121 S.E. 233 (1923) (see O.C.G.A. § 44-6-24).
Limitation over or reversion limits to determinable fee.
- Deed to X "and her children should any be born to her" (she having no child at that time), "and in the event she die without any in life, then to revert" conveys a determinable fee to X. Davis v. Hollingsworth, 113 Ga. 210, 38 S.E. 827, 84 Am. St. R. 233 (1901).
Deed to X and heirs of X's body with provision of reverter in case of such failure of heirs conveys a fee tail which is converted into a fee simple under this statute and made a determinable fee by the reverter provision. Shealy v. Wammock, 115 Ga. 913, 42 S.E. 239 (1902) (see O.C.G.A. § 44-6-24).
Life estate with remainder in fee created.
- Under this statute, a deed to one and the heirs of one's body after one's death conveys a life estate to the first taker, with a remainder over to one's children. Bristol Sav. Bank v. Nixon, 169 Ga. 282, 150 S.E. 148 (1929); Evans v. Edenfield, 170 Ga. 805, 154 S.E. 257 (1930) (see O.C.G.A. § 44-6-24).
Implied Estates Tail
Construction of subsection (b).
- Subsection (b) of this statute should be held to mean that limitations which, under the English rules of construction, would create an estate tail by implication, and which are not illegal, are to be construed as provided by it. In other words, it would in some cases save provisions in deeds and wills which might otherwise be brought under the ban of the statute making all estates tail illegal. Slappey v. Vining, 150 Ga. 792, 105 S.E. 353 (1920) (see O.C.G.A. § 44-6-24).
Estates tail by implication arose in England under devises wherein a greater estate than for the life of the first taker was irresistibly inferred when the devise was to A, without the added words "and his heirs," and the same estate was limited over upon words importing an indefinite failure of issue; and hence, in such devises, as, to A, and if A dies without issue, to B, the devise was construed by necessary implication to be equivalent to a devise to A and A's issue, and if A dies without issue, to B, so as to bring it within the intent, if not the letter, of the statute De Donis. Hertz v. Abrahams, 110 Ga. 707, 36 S.E. 409, 50 L.R.A. 361 (1900) (see O.C.G.A. § 44-6-24).
Life estate to A, remainder to children, does not create estate tail.
- An estate to B for life, remainder to B's children, if any, but if none, then to R, cannot possibly be made an estate tail, for the term "children" does not describe any such class. In its proper sense, it includes only the next generation to B and to make it include more, there must be something in the will to show that it is used in a broader sense. The persons who take under the description of children must all be in life at the death of B. The conveyance exhausts itself on a single generation, and creates nothing which bears a resemblance to an estate tail. An estate tail by implication can arise only in cases of the absence of an expressed intention. Burton v. Black, 30 Ga. 638 (1860); Tennell v. Ford, 30 Ga. 707 (1860).
When a limitation is to a parent for life, and to the parent's children by way of remainder, there seems to be no ground, whether there are children or not, for holding the parent to be a tenant in tail. Gaboury v. McGovern, 74 Ga. 133 (1884).
Subsection (b) inapplicable to conveyance with limitation referred to in § 44-6-25. - Since a limitation of the type referred to in former Code 1933, § 85-506 (see O.C.G.A. § 44-6-25) will no longer be construed to refer to an indefinite failure of issue, but must now be construed to mean a definite failure of issue at the death of the first taker, no fee tail can be implied from such a limitation by the English rules of construction. Thus, the portion of subsection (b) of former Code 1933, § 85-505 (see O.C.G.A. § 44-6-24) referring to implied fee tails by the English rules of construction was inapplicable to a conveyance containing such a limitation. Raines v. Duskin, 247 Ga. 512, 277 S.E.2d 26 (1981).