Estates in remainder may be created for persons not in being. If such a remainder is vested, it will open to take in all persons within the description who come into being up to the time the enjoyment of the estate commences.
(Orig. Code 1863, § 2250; Code 1868, § 2242; Code 1873, § 2268; Code 1882, § 2268; Civil Code 1895, § 3103; Civil Code 1910, § 3679; Code 1933, § 85-706.)
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).
JUDICIAL DECISIONS
Former Civil Code 1910, § 3744 must be construed in connection with and in the light of former Civil Code 1910, § 3679 (see O.C.G.A. § 44-6-65). Nelson v. Estill, 175 Ga. 526, 165 S.E. 820 (1932).
Section changes the rule of estates in remainder at common law. Britt v. Fincher, 202 Ga. 661, 44 S.E.2d 372 (1947) (see O.C.G.A. § 44-6-65).
Section applies to both deeds and wills. Hill v. Lang, 211 Ga. 484, 86 S.E.2d 498 (1955) (see O.C.G.A. § 44-6-65).
When children granted remainder, those living get vested right, subject to open for after-born children.
- When an estate is granted to one for life, and to such of one's children as should be living after one's death, a present right to the future possession vests at once in such as are living, subject to open and let in after-born children, and to be divested as to those who shall die without issue. Doe v. Newton, 171 Ga. 418, 156 S.E. 25 (1930).
When there is a grant of a remainder to children as a class, the children in esse at the time of the execution of the deed take a vested remainder, which opens for the purpose of letting in after-born children. Ward v. Ward, 176 Ga. 849, 169 S.E. 120 (1933).
Remainder to unborn child is contingent until birth, when title vests.
- Remainder given to the unborn child or children was, of course, contingent until the birth of such child, when the remainder given to the named children, if vested, would open to take in the after-born child. Wilbur v. McNulty, 75 Ga. 458 (1885); Fields v. Lewis, 118 Ga. 573, 45 S.E. 437 (1903).
T, the son of J, one of the second life tenants, not being in esse at the death of the testator, the remainder is construed to be contingent until the birth of the child in whom the title to the remainder immediately vests, subject to open and take in all other children born before the termination of the life estate. Crawley v. Kendrick, 122 Ga. 183, 50 S.E. 41, 2 Ann. Cas. 643 (1905); Gibbons v. International Harvester Co., 146 Ga. 467, 91 S.E. 482 (1917); Cock v. Lipsey, 148 Ga. 322, 96 S.E. 628 (1918).
When remainders may be created, in a deed, for the future benefit of persons not in being, if there is no child in esse when the instrument becomes effective, the remainder is at first necessarily contingent, but only so up until the time a child is born, when title to the remainder vests in the child, subject to open and take in children born after title to the remainder has vested in the first child. All such children who come into being prior to the termination of the antecedent estate take as purchasers under the instrument. Britt v. Fincher, 202 Ga. 661, 44 S.E.2d 372 (1947).
Remainder may be created for future wife.
- Valid remainder can be created for children unborn and who may never be born, and a like remainder may be created for a future wife. Citizens & S. Nat'l Bank v. Howell, 186 Ga. 47, 196 S.E. 741 (1938).
Cut-off date for determining class membership.
- When father reserved life estate, while conveying to his daughter and her children a future interest in his property, the critical date for determining the time the enjoyment of the estate commenced, and thus the cut-off date for class membership was not the date of the daughter's death, but the date of the father's death. Chester v. Cannon, 258 Ga. 486, 371 S.E.2d 387 (1988).
Vested remainderman proper person to prosecute action for waste by life tenant.
- When the remainder vested in the remainderman upon the death of the testator, subject to being divested in the event of her predeceasing the life tenant, she alone is the proper person to prosecute an action for waste and the failure of the life tenant to protect the property. Smith v. Minich, 215 Ga. 386, 110 S.E.2d 649 (1959).
Vested remainder found.
- 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).
Cited in Padgett v. Hatton, 200 Ga. 209, 36 S.E.2d 664 (1946); Nash v. Crowe, 222 Ga. 173, 149 S.E.2d 88 (1966).