Remainders are either vested or contingent. A vested remainder is a remainder which is limited to a certain person at a certain time or which is dependent upon the happening of a necessary event. A contingent remainder is a remainder which is limited to an uncertain person or which is dependent upon an event which may or may not happen.
(Orig. Code 1863, § 2247; Code 1868, § 2239; Code 1873, § 2265; Code 1882, § 2265; Civil Code 1895, § 3100; Civil Code 1910, § 3676; Code 1933, § 85-703.)
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, "The Rule Against Perpetuities as Applied to Georgia Wills and Trusts," see 16 Ga. L. Rev. 235 (1982). For note discussing construction and interpretation of wills, see 1 Ga. L. Rev. 46 (1927). For comment on Cunningham v. Cunningham, 230 Ga. 493, 197 S.E.2d 731 (1973), see 8 Ga. L. Rev. 502 (1974).
JUDICIAL DECISIONSANALYSIS
One named as the beneficiary of a life estate may also take a remainder interest. Schriber v. Anderson, 205 Ga. 343, 53 S.E.2d 490 (1949).
Statute merely defines the terms "vested remainder" and "contingent remainder" but confers no rights. Owens v. Davis, 224 Ga. 146, 160 S.E.2d 352 (1968) (see O.C.G.A. § 44-6-61).
Distinction between vested and contingent remainders.
- Taking effect of a remainder in possession may be uncertain, and yet be a vested remainder. The question whether it is a vested remainder does not depend upon the fact of the remaindermen outliving the life tenant, but upon their capacity to have taken by any means which might have determined the life estate. The present capacity of taking effect in possession if the possession will become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, universally distinguishes a vested remainder from one that is contingent. Olmstead v. Dunn, 72 Ga. 850 (1884); Roberts v. Wadley, 156 Ga. 35, 118 S.E. 664 (1923).
An estate is vested when there is an immediate right of enjoyment, or a present fixed right of future enjoyment. It is the present capacity of taking effect in possession, if the possession were to become vacant, that distinguishes a vested from a contingent remainder. Wilbur v. McNulty, 75 Ga. 458 (1885).
Various tests have been suggested for determining whether in a given case a future estate is a vested or a contingent remainder. One of these tests is: "The present capacity of taking effect in possession, if the possession were to become vacant, distinguishes a vested remainder from one that is contingent." Schley v. Williamson, 153 Ga. 245, 111 S.E. 917 (1922).
Present capacity of taking effect in possession, if the possession were to become vacant, distinguishes a vested remainder from one that is contingent. Lumpkin v. Patterson, 170 Ga. 94, 152 S.E. 448 (1930).
A gift which is made presently with payment postponed creates a vested interest, but a gift which is suspended altogether until a future time creates a contingent interest. Stokes v. Trust Co., 507 F.2d 177 (5th Cir. 1975).
Transferability of remainders.- Vested remainder is transferable by the party in whom it is vested, while a contingent remainder is nontransferable. Stokes v. Trust Co., 507 F.2d 177 (5th Cir. 1975).
Cited in McCoy v. Olive, 168 Ga. 492, 148 S.E. 327 (1929); Cooper v. Davis, 174 Ga. 670, 163 S.E. 736 (1932); Padgett v. Hatton, 200 Ga. 209, 36 S.E.2d 664 (1946); Shedden v. Donaldson, 207 Ga. 77, 60 S.E.2d 158 (1950); Erskine v. Klein, 218 Ga. 112, 126 S.E.2d 755 (1962); Scott v. Scott, 218 Ga. 732, 130 S.E.2d 499 (1963); Nash v. Crowe, 222 Ga. 173, 149 S.E.2d 88 (1966); Walker v. Bogle, 244 Ga. 439, 260 S.E.2d 338 (1979); First Presbyterian Church v. Price, 248 Ga. 38, 280 S.E.2d 830 (1981).
Vested Remainders
1. Rules of Construction
Law favors vesting of remainders.
- Law favors vested remainders, and it is an established rule that the court never construes a remainder to be contingent when it can be taken to be vested. Vickers v. Stone, 4 Ga. 461 (1848); Fields v. Lewis, 118 Ga. 573, 45 S.E. 437 (1903); Lumpkin v. Patterson, 170 Ga. 94, 152 S.E. 448 (1930).
A vested remainder is one limited to a certain person at a certain time, or upon the happening of a certain event. The law favors the vesting of remainders in all cases of doubt, and in construing wills, words of survivorship will refer to the death of the testator in order to vest remainders, unless a manifest intention to the contrary appears. Olmstead v. Dunn, 72 Ga. 850 (1884).
Under the provisions of state law, and under the decisions of the Supreme 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. Miller v. Brown, 215 Ga. 148, 109 S.E.2d 741 (1959).
Instrument so construed to favor vesting.
- When an instrument is susceptible to two constructions, the one favorable to vested and unfavorable to contingent remainders should be adopted. Miller v. Brown, 215 Ga. 148, 109 S.E.2d 741 (1959).
Conditions for a vested remainder are: that the estate is certain, the person or class of persons to whom it is devised is certain, and the event fixing the time when its enjoyment should commence is a necessary one. Bull v. Walker, 71 Ga. 195 (1883).
Estate vested when present right of enjoyment exists.
- An estate is vested when there is an immediate right of enjoyment, or a present fixed right of future enjoyment. Lumpkin v. Patterson, 170 Ga. 94, 152 S.E. 448 (1930).
Any form of present enjoyment in an estate will indicate that the estate vests presently, even though full payment may be postponed until a future time. Stokes v. Trust Co., 507 F.2d 177 (5th Cir. 1975).
Classes of vested remainders may be stated as follows: (1) vested remainders that are absolutely and indefeasibly fixed and determined; (2) vested remainders to a class, which is subject to open and take in additional remaindermen after the time the estate becomes vested; and (3) vested remainders whether to a person or to a class, but subject to be thereafter divested upon the happening of a contingent event. A vested remainder may in its nature partake of the characteristics of both of the last-mentioned classes. Britt v. Fincher, 202 Ga. 661, 44 S.E.2d 372 (1947).
Vested remainder may be subject to being divested. Cunningham v. Cunningham, 230 Ga. 493, 197 S.E.2d 731 (1974).
When remainders are subject to be divested, in whole or in part, by the disposition of the whole or some part of the property left by the testator, this contingency does not deprive the remainder of its character as vested. Walters v. Walters, 163 Ga. 884, 137 S.E. 386 (1927). See also Melton v. Camp, 121 Ga. 693, 49 S.E. 690 (1905).
Divesting clauses, especially as to remainders, following grant of absolute estate should be strictly construed so as to vest the estate absolutely at the earliest possible time. Miller v. Brown, 215 Ga. 148, 109 S.E.2d 741 (1959).
Distinction between vesting of title and vesting of possession excludes those dying before title vested.
- On account of the remainder being vested absolutely in the children in esse at the time of the vesting of title, the shares of such children who should die between the vesting of the title and the vesting of the estate in possession would go to their heirs under this statute, which would include their descendants. Thus, we see, there are two vestings of a vested remainder - viz.; one of the title, and the other of the estate in possession, - each of which is important in fixing the devolution of the title to such remainders; that the law designating the beneficiaries thereunder excludes a grandchild of the life tenant whose parent died before the testator died. Davie v. Wynn, 80 Ga. 673, 6 S.E. 183 (1888); Tolbert v. Burns, 82 Ga. 213, 8 S.E. 79 (1888); Martin v. Trustees of Mercer Univ., 98 Ga. 320, 25 S.E. 522 (1896). See also Crawley v. Kendrick, 122 Ga. 183, 50 S.E. 41, 2 Ann. Cas. 643 (1905) (see O.C.G.A. § 44-6-61).
In "limitation over" to "heirs," persons answering description given vested remainder.
- By former Code 1882, § 2249 (see O.C.G.A. § 44-6-23), in a "limitation over" to "heirs", "heirs of body", "lawful heirs", and "lineal heirs", persons answering the description take as purchasers upon the vesting of the estate. The term "limitation over" is made to mean any estate in the same property to be enjoyed after the expiration of the first estate, whether by succession or substitution. This seems to give such persons a vested remainder. Ewing v. Shropshire, 80 Ga. 374, 7 S.E. 554 (1888); Crawley v. Kendrick, 122 Ga. 183, 50 S.E. 41, 2 Ann. Cas. 643 (1905).
When "heir" dies without issue, remainder fails and estate reverts to testator's estate.
- Testator by will created a trust estate with a limitation over to the testator's "heirs at law" who might be in life at the time of the termination of the trust estate. Applying the provisions of former Code 1933, § 85-504 (see O.C.G.A. § 44-6-23), the words "heir at law" would mean children and the decedents of children, and since the only children of the testator had died without issue, this remainder failed, the estate reverted, and the reversionary interest in the testator's estate vested, upon the testator's death, in those who were then the testator's heirs at law, with the right of possession postponed until the death of the last life tenant. Dodson v. Trust Co., 216 Ga. 499, 117 S.E.2d 331 (1960).
Section 44-6-23 inapplicable to express devise to life tenant's children, or children as class.
- Former Civil Code 1895, § 3084 (see O.C.G.A. § 44-6-23) had no application to remainders to children as a class, nor to an expressed devise of a remainder to children of a life tenant. The law governing this has been fixed for centuries and vests the title absolutely in the children in esse at the death of the testator (subject to open in certain cases), and such remainder being vested, the shares of such children who should die between the vesting of title and the vesting of the estate in possession would go under former Civil Code 1895, § 3100 (see O.C.G.A. § 44-6-61), to their heirs, which would include their descendants. Crawley v. Kendrick, 122 Ga. 183, 50 S.E. 41, 2 Ann. Cas. 643 (1905).
Referring to a devise to A for life with remainder to A's children as a class, both at common law and under the decisions of this court, such a devise in remainder has always been held, in accordance with an established principle of law which has become a rule of property to vest the title only in the children in esse at the death of the testator, subject to open and take in all other children born up to the vesting of the estate in possession at the life tenant's death. Crawley v. Kendrick, 122 Ga. 183, 50 S.E. 41, 2 Ann. Cas. 643 (1905); Lamkin v. Hines Lumber Co., 158 Ga. 785, 124 S.E. 694 (1924).
Remainder to "children".
- When remainder is to "children", children of deceased child take interest of deceased parent. The remainders to the children vested at the time of the execution and delivery of the deed. Ward v. Ward, 176 Ga. 849, 169 S.E. 120 (1933).
Children of daughter of testator who dies before father.
- Property being given to the testator's children as a class, the children of the daughter of the testator, who died before her father, took no interest under the will. Toucher v. Hawkins, 158 Ga. 482, 123 S.E. 618 (1924).
Interest created where death between vesting of title and vesting of possession.
- A devise to X for life, then in fee to M and M's heirs, and if M has none to the children of J, two of whom, S and P, died after the testator but before the vesting of the possession of the estate, created a vested remainder in S and P, which was transmissible to their heirs. Payne v. Rosser, 53 Ga. 662 (1875).
As the parents were in esse when the deed was executed and delivered to the trustee, their rights to the property in dispute became vested, and their dying before the life tenant did not defeat the rights of their children to their several distributive shares. Wilbur v. McNulty, 75 Ga. 458 (1885).
As a general rule, when there is a devise to a class, the members of the class are to be ascertained upon the death of the testator as the will takes effect on that date. In a devise to children as a class by way of a remainder, children in esse at the death of the testator take vested interests and the interest of any that might die before the period of distribution passed to their heirs. Crawley v. Kendrick, 122 Ga. 183, 50 S.E. 41, 2 Ann. Cas. 643 (1905); Irvin v. Porterfield, 126 Ga. 729, 55 S.E. 946 (1906); Milner v. Gay, 145 Ga. 858, 90 S.E. 65 (1916); Gibbons v. International Harvester Co., 146 Ga. 467, 91 S.E. 482 (1917); Powell v. McKinney, 151 Ga. 803, 108 S.E. 231 (1921).
When a will gave a tract to the plaintiff's grandmother for life, with a remainder at her death to their father, "his heirs and assigns," but without any limitation over to any "heirs" of the father after his death, the father therefore acquired a vested remainder, and when he died intestate after the testator died, and before the death of the life tenant, without having disposed of the remainder, the plaintiffs took nothing as devisees directly under the will of their grandfather, but only such interest as they might have acquired solely as heirs of their father, which was subject to a year's support from his estate, if that support was valid or good against them. Jones v. Federal Land Bank, 189 Ga. 419, 6 S.E.2d 52 (1939).
Under former Code 1933, § 85-504 (see O.C.G.A. § 44-6-63), if the deceased remainderman had at the time of the deceased's death an estate which had absolutely and indefeasibly vested, the deceased's heirs at law inherited the deceased's vested remainder interest with right of possession deferred until the termination of the antecedent estate. Britt v. Fincher, 202 Ga. 661, 44 S.E.2d 372 (1947).
When under a will two named daughters took a remainder interest in a one-third share of the estate devised to the testator's wife for life or widowhood, which remainder interest had become vested at the time the estate was divided (by provision of the will), but was subject to be divested in favor of the respective grandchildren in the event such named children should predecease the life tenant leaving children of their own, the divesting contingency in favor of the grandchildren became impossible of happening as to one daughter in that she had no children at the time of her dying intestate prior to the termination of the life estate. Upon the death of the life tenant, the husband of this daughter was entitled to take, not under the will, but by inheritance from his wife, that vested share of the estate to which his wife would have been entitled had she not predeceased the life tenant. McDougald v. Kennedy, 203 Ga. 144, 45 S.E.2d 654 (1947).
Vested remainder interest in life tenant not prevented.
- Fact that a life tenant could not enjoy the estate in remainder, because the remainder interest would not be distributed until the death of the life tenant, does not prevent a vested title in the remainder interest being in the life tenant, which might be sold and conveyed by the remainderman, or devised to, or be inherited by, the remainderman's heirs, who would take a vested remainder interest. Schriber v. Anderson, 205 Ga. 343, 53 S.E.2d 490 (1949).
When the heirs at law of the testator at the time of the testator's death were the testator's two sons, the fact that the sons were life tenants of the trust estate created by the testator would not prevent the vesting in them of the reversionary interest in the remainder estate. Dodson v. Trust Co., 216 Ga. 499, 117 S.E.2d 331 (1960).
2. Illustrative Cases
Vested remainder found.
- When property was settled upon the wife for life, remainder to the husband for life, remainder to the heirs general of the husband, the husband took a vested remainder in fee. Varner v. Boynton, 46 Ga. 508 (1872).
When a testator devised certain lands to his wife for life, and after her death to his son for life, and after his death to his children living at his death, in fee, the son took a vested remainder estate, subject to be divested upon his death before that of the first life tenant. Lufburrow v. Koch, 75 Ga. 448 (1885).
Devise to "A for life with remainder to the children of my brothers and sisters" created a vested remainder in the children living at the testator's death, under this statute and the holding of McGinnis v. Foster, 4 Ga. 377 (1848); Legwin v. McRee, 79 Ga. 430, 4 S.E. 863 (1887) (see O.C.G.A. § 44-6-61).
When an estate was given to X for life with remainder to Y if living, Y took a vested remainder, subject to be divested upon dying before the life tenant. McDonald v. Taylor, 107 Ga. 43, 32 S.E. 879 (1899).
An estate to X for life, then to her children by her present husband, four of the children being in esse at the time and another being born later, created under this statute a vested remainder in all of the children except the unborn child, and a contingent remainder in it before birth, but upon birth, the remainder to the other children opened to take in such a child. Fields v. Lewis, 118 Ga. 573, 45 S.E. 437 (1903) (see O.C.G.A. § 44-6-61).
Where one bequeaths property to his wife "during her lifetime," and further provides that at her death it shall belong to a named daughter and the heirs of her body, the remainder is one limited to certain person upon the happening of a necessary event, and such remainder is vested. Pearson v. Cochran, 152 Ga. 276, 109 S.E. 498 (1921).
An estate to X and Y for life, and if Y should die without marrying then to S, or if Y should marry one half to S, created a vested remainder in S. Schley v. Williamson, 153 Ga. 245, 111 S.E. 917 (1922).
Will to X and Y during life or the period of remaining single, then to S in fee, created a vested remainder in S. De Vane v. Young, 154 Ga. 832, 115 S.E. 661 (1923).
When a testator by will bequeathed and devised a life estate in described property to his wife and daughters, and the will further provided, "in case any of my daughters should die leaving no children or grandchildren surviving her, I direct that her share of my estate revert to the other legatees herein named, if all are living at the time; if not, to those living or to the children or grandchildren of such as may be dead taking per stirpes," and where one of the daughters of the testator had three children, one of whom predeceased his mother, and before his death mortgaged his interest in the estate, this grandchild of the testator took a vested remainder in the property in controversy, subject to be divested upon the mother dying without child or grandchildren. Federal Reserve Bank v. Spearman, 176 Ga. 236, 167 S.E. 603 (1933).
When an unqualified limitation over in a deed is expressly to the children of a life tenant as a class, the children in esse at the time the instrument creating the remainder becomes effective, take, as purchasers under the instrument, a vested remainder interest, which is subject to open and in like manner take in other children of the life tenant born subsequently to the vesting of title in the first-born remainderman. Britt v. Fincher, 202 Ga. 661, 44 S.E.2d 372 (1947).
Provision of the will of a testatrix that "the remaining assets of my estate of whatever kind and nature * * *. I hereby give, bequeath, and devise to my stepson," upon the death of the testatrix conveyed a vested remainder interest to the stepson in the residue of the estate. Schriber v. Anderson, 205 Ga. 343, 53 S.E.2d 490 (1949).
When a testator bequeaths a certain fund to a trustee, providing that the trustee shall manage, invest, sell, exchange, and reinvest the fund, and pay a stated amount therefrom each month to "A" during A's lifetime, and at the death of "A" the balance of the fund, if any, shall be divided between "B" and "C" (children of "A"), and in the next succeeding paragraph of the will provides that if "B" or "C" does not live until the time for payment to "B" or "C", leaving children surviving "B" or "C", then such children of "B" and "C" as survive the parent shall take the parent's share - the remainder interest of "B" and "C" in the trust fund is a defeasible vested interest, subject to be divested by their death without children before the death of "A." Love v. McManus, 208 Ga. 447, 67 S.E.2d 218 (1951).
When a corporate resolution uses the term "reversion" to describe the estate of a stockholder, the estate is a vested remainder if the remainder interest is limited to that stockholder upon the death of another, and the stockholder's rights are the same as those of a vested remainderman. J.B. McCrary Co. v. Peacock, 223 Ga. 476, 156 S.E.2d 57 (1967).
Trial court erred in the court's construction of a deed because the deed was clear as written and, as such, the heir received a one-third undivided interest in the property, and the executor individually and the estate each received a one-third undivided interest as the vested remaindermen who each received an interest in the property under O.C.G.A. § 44-6-66. Wilkes v. Fraser, 324 Ga. App. 642, 751 S.E.2d 455 (2013).
Effect of legislation on vested right to pension benefits.
- When fireman had been retired in 1932, and was receiving a "pension" of $100.00 a month up to the time of his death in 1937, and when, during the period of such payments and at the time of his death, he had a wife, the widow, even though she had not yet drawn the "pension" at the time of the 1935 statutory provision reducing pensions, and was not entitled thereto until after the death of the husband, nevertheless had a vested right which could not be altered by later legislation. Such a right was not merely contingent, but was more analogous to a vested remainder or salable interest, subject to be divested and to go to other beneficiaries upon her dying or remarrying before receiving payments. West v. Anderson, 187 Ga. 587, 1 S.E.2d 671 (1939).
Vested remainder not found.
- Deed provided that "at the death or marriage of F the property shall go to and vest in the child or children of the said J then in life, and in case of the death of such child during the life or widowhood of F leaving issue alive, such issue shall take in place of such child." This does not constitute a vested remainder, because in a vested remainder there is some person in esse, known and ascertained who, by the will or deed creating the estate, is to take and enjoy the estate upon the expiration of the existing particular estate, and whose right to such remainder no contingency can defeat. City Council v. Radcliffe, 66 Ga. 469 (1881).
Contingent Remainders
Contingent remainder interest in land is an "estate." Phelps v. Palmer, 192 Ga. 421, 15 S.E.2d 503 (1941).
Different classes of contingent remainders may be stated as follows: (1) contingent remainders when the estate is to an uncertain person; (2) contingent remainders when the person is certain, but when the vesting of the estate in possession is conditioned upon the happening of an uncertain event. Britt v. Fincher, 202 Ga. 661, 44 S.E.2d 372 (1947).
There is distinction between uncertainty of contingent remainder and uncertainty of estate ever taking effect in possession, which is incidental to even a vested remainder. In a vested remainder, the time of possession and the enjoyment being deferred, there is always an uncertainty as to whether the estate will ever be enjoyed in possession. Walters v. Walters, 163 Ga. 884, 137 S.E. 386 (1927).
Uncertainty as to mere quantum of property to be possessed does not make remainders contingent. The remaindermen are subject to be divested in whole or in part by the sale or disposal of the whole, or some part, of the property left by the testator. This contingency, however, does not deprive the remainders of their character of being vested. Cochran v. Groover, 156 Ga. 323, 118 S.E. 865 (1923).
Contingent remainder must vest on or before termination of preceding estate, or happening of contingency.
- Though a contingent remainder may become vested, if persons answering the description of the remaindermen come into being during the existence of the particular estate, or by the time the remainder is to vest (Ardis v. Printup, 39 Ga. 648 (1869); Kollock v. Webb, 113 Ga. 762, 39 S.E. 339 (1901)), nevertheless, when the remaindermen are not in esse at the time of the making of the deed, nor come into existence pending the precedent estate when the remainder is to vest, the remainder can never thereafter vest. A contingent remainder must vest on or before the termination of the particular estate, or the happening of the contingency, which is to vest it, or it will be defeated. Edwards v. Edwards, 147 Ga. 12, 92 S.E. 540 (1917).
Remaindermen cannot be divested during existence of life estate except by appropriate legal proceedings.
- It is the general rule that the right of contingent remaindermen constitutes an estate in land of which they cannot be divested during the existence of the life estate except by appropriate legal proceedings to which they are made parties. Mason v. Young, 203 Ga. 121, 45 S.E.2d 643 (1947).
Remainderman should be held amenable to court processes by one holding apparent preexisting title to remove what amounts to a cloud thereon. Mason v. Young, 203 Ga. 121, 45 S.E.2d 643 (1947).
Contingent remainderman cannot cancel deed executed by life tenant.
- Remainderman whose estate is equitable and contingent cannot, during the existence of a precedent life estate, maintain a suit to cancel a security deed executed by the life tenant and the trustees, purporting to convey the entire trust estate. Stout v. Massachusetts Mut. Life Ins. Co., 183 Ga. 649, 189 S.E. 248 (1936).
Contingent remainder found.
- Bequest to A at the death of the wife of the testator, or when A marries or becomes of age, is a contingent interest, dependent for its transmission to A's representatives upon her being in life at the happenings of some one of the named contingencies. If she dies before that time (as the legatee did in this case), there is nothing in her to pass to her administrator. Allen v. Whitaker, 34 Ga. 6 (1864).
After S deeded land to X in trust for Y, and upon Y's death to her children, and if she dies without children then to X in fee, X took a contingent remainder, the remainder being limited upon an event which may or may not happen. Morse v. Proper, 82 Ga. 13, 8 S.E. 625 (1889).
Interest of the "legal heirs" of a beneficiary in one-half of the income of the trust property was a remainder estate, contingent on one's death prior to a termination of the trust estate, and the rules of former Code 1933, § 85-504 (see O.C.G.A. § 44-6-23) would require a construction of the words "legal heirs" to mean children and the descendants of children. This remainder failed because of the failure of issue of the beneficiary and the estate reverted to the testator's estate and should be distributed to the widows of the two sons of the testator. Dodson v. Trust Co., 216 Ga. 499, 117 S.E.2d 331 (1960).
OPINIONS OF THE ATTORNEY GENERALRemainder interest in stock in foreign corporation owned for life by nonresident is vested remainder in that it is limited upon the happening of a necessary event. 1963-65 Op. Att'y Gen. p. 49.