Wisse v. Anderson

219 S.E.2d 393, 235 Ga. 255
CourtSupreme Court of Georgia
DecidedSeptember 16, 1975
Docket30004, 30005
StatusPublished
Cited by5 cases

This text of 219 S.E.2d 393 (Wisse v. Anderson) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wisse v. Anderson, 219 S.E.2d 393, 235 Ga. 255 (Ga. 1975).

Opinions

Jordan, Justice.

These appeals are from the grant of a partial summary judgment in an action for the construction of the will of H. T. Hudson, the cancellation of deeds, and other relief.

The action was brought by Mrs. Henrijo Hudson Wisse and Mrs. Katherine Hudson Herrington, daughters of the testator, against Mrs. Marguerite S. Anderson and Mrs. Leone G. Hudson, individually and as executrix of R. B. Hudson. The two plaintiffs and R. B. Hudson were all of the children of the testator. The testator died in 1930, and his widow died in 1971. In 1956 R. B. Hudson deeded to his wife, Mrs. Leone Hudson, 300 acres of land described in Item 4 of the will of H. T. Hudson. R. B. Hudson died in 1958, and no child or children were ever bom to him. By his will he gave all of his property to his wife, Mrs. Leone Hudson. Soon after the death of the testator’s widow, Mrs. Leone Hudson executed a warranty deed to Mrs. Marguerite Anderson purporting to convey the three tracts of land described in Item 4 of H. T. Hudson’s will in fee simple.

The plaintiffs assert that under the will of H. T. Hudson, R. B. Hudson had no right to convey the fee simple title to the 300 acres in the deed to his wife, Mrs. Leone Hudson, in 1956, while the life tenant, Mrs. H. T. Hudson, was living, and this deed is void; and that no estate was created in Mrs. R. B. Hudson under the will of H. T. Hudson, and she had no right to convey the property described in Item 4 of the will to Mrs. Anderson.

Item 3 of the will of H. T. Hudson gave all of his property to his wife, Katie Brooks Hudson, for her life.

Item 4 of the will provided: "At the death of said wife, it is my desire and I will and bequeath to my son, R. B. Hudson, the following real estate [describing three tracts of land]. It is my will and desire, that in the event there is [256]*256no child or children born to my said son, then and in that event, after death of my said son, R. B. Hudson and his wife, the remainder of said property that he has not disposed of shall revert back to the estate of the said H. T. Hudson to be disposed of in terms of the law of inheritance of this State. Now while I am only giving to my said son, R. B. Hudson, a life interest in the property designated in this Item of my will, subject to the stipulations set out in said Item it is not my purpose to fix all of said property so he cannot use some of it for ready money, in the event it becomes necessary for him to improve or repair it or for any other purpose, Therefore, I give him the right and power to sell any 300 acres included in this Item subject to the limitation set out in Item 7 of this will, and I expressly give to him the right and power to sell said land to any one he desires without any order of court, and either at private or public sale as he sees fit, and I also give him the same power and authority to make good and sufficient titles, to said lands as I now possess.”

Items 5 and 6 devised described property to his daughters, the plaintiffs. Item 7 designated particular tracts of 100 acres each in Items4, 5, and 6 that his widow could sell. (This right was never exercised by her.)

The plaintiffs filed a motion for summary judgment based on the pleadings and the depositions of Mrs. Marguerite Anderson and Mrs. Leone G. Hudson.

The trial judge entered a partial summary judgment in which he held that R. B. Hudson had the right, in 1956, to convey the tract of 300 acres to his wife, Mrs. Leone Hudson, if there was a valuable consideration and no fraud, and the right to convey this tract to Mrs. Anderson in fee simple. He held that a jury question remained on the question of consideration and fraud as to the deed from R. B. Hudson to his wife. He further held that Mrs. Leone Hudson had only a life estate in the other two tracts described in Item 4, and this was all that she could convey to Mrs. Anderson, since the property would revert to the heirs of H. T. Hudson at the death of Mrs. Leone Hudson.

In Case No. 30004, Mrs. Wisse and Mrs. Herrington contend that the judge erred in holding that R. B. Hudson had the right to convey the tract of300 acres to his wife in 1956, prior to the death of the testator’s widow, and in [257]*257holding that Mrs. Leone Hudson had a life estate in the other two tracts described in Item 4 of H. T. Hudson’s will.

In Case No. 30005, Mrs. Leone Hudson and Mrs. Marguerite Anderson contend that the judge erred in holding that Mrs. Leone Anderson’s title to the tract conveyed to her by her husband, R. B. Hudson, was contingent on the question of whether there was consideration and no fraud, and in holding that she could convey only a life estate in the other two tracts.

A certificate for immediate review was signed by the trial judge.

1. The defendants contend that the plaintiffs cannot obtain the relief sought because they have not offered to restore to Mrs. Anderson the consideration she paid for the deed from Mrs. Leone Hudson.

There is no merit in this contention. The consideration was not paid to the plaintiffs, and they had nothing to restore. A person buying property devised under a will takes the deed subject to the terms of the will.

2. The first question for determination in the construction of the will of H. T. Hudson is the nature of the estate given to R. B. Hudson by Item 4.

The item first appears to devise a remainder interest in fee in three tracts of land to R. B. Hudson, subject to being divested if no child or children were born to him, or a defeasible fee. Gibson v. Hardaway, 68 Ga. 370; Daniel v. Daniel, 102 Ga. 181 (1) (28 SE 167); Jenkins v. Shuften, 206 Ga. 315 (1) (57 SE2d 283); Scranton-Lackawanna Trust Co. v. Bruen, 206 Ga. 872, 874 (59 SE2d 397).

The further language, "Now while I am only giving to my said son, R. B. Hudson, a life interest in the property designated in this Item . . . ,” is consistent with the contingency that no child or children be born to him. If this language should be construed to mean that only a life estate was devised, the reverter provision would have no meaning. An express devise of lands cannot be reduced to a lesser estate by subsequent language of doubtful meaning. McDonald v. Suarez, 212 Ga. 360 (1) (93 SE2d 16).

We conclude that by Item 4 R. B. Hudson was given a defeasible fee in remainder in the property described therein.

[258]*2583. The next question for determination is the time of vesting of the defeasible remainder estate in R. B. Hudson.

Item 4 provided: "At the death of said wife, etc.” Reference is to the death of the testator’s widow.

These words do not designate the time at which the remainder interest vests, but merely specify the time for possession of the estate.

It is the general rule that: "If the remainderman shall die before the time arrives for possessing his estate in remainder, his heirs shall be entitled to a vested-remainder interest, and to a contingent-remainder interest when the contingency is not as to the person but as to the event.” Code § 85-704.

There is nothing in the will to indicate an intention contrary to the general rule, and the defeasible remainder estate of R. B. Hudson vested at the death of the testator.

4. It is necessary to determine whether the 1956 deed from R. B. Hudson to his wife, conveying 300 acres of the land described in Item 4 of the will of H. T.

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268 S.E.2d 147 (Supreme Court of Georgia, 1980)
Dunn v. Sanders
256 S.E.2d 366 (Supreme Court of Georgia, 1979)
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253 S.E.2d 748 (Supreme Court of Georgia, 1979)
Raney v. Smith
251 S.E.2d 554 (Supreme Court of Georgia, 1979)
Wisse v. Anderson
219 S.E.2d 393 (Supreme Court of Georgia, 1975)

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Bluebook (online)
219 S.E.2d 393, 235 Ga. 255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wisse-v-anderson-ga-1975.