Smith v. Smith
Smith v. Smith
Opinion of the Court
(After stating the foregoing facts.) A consideration of the express provisions of item ten, as quoted in full in the statement of facts, will reveal unmistakably that the testatrix intended to limit the son’s interest to a life estate with specified remainder over at his death. No technical language is needed to create a remainder. Any words that show it was the intention of the creator to create, by one instrument, two or more estates, so that the possession incident to one is temporarily exclusive of the possession incident to another, the law will hold to create an estate in remainder. Here by item ten the income from the property is given to the son to be managed as later specified, the property to go at his death to his legitimate heirs including any widow, to the extent of a life-estate share, but if at his death there should be no children, or widow, then to certain alternative remaindermen. By no means of construction could the specific limitations in remainder to take effect at the death of the son be disregarded so as to thereby enlarge the son’s title into a fee-simple estate. See Jones v. Crawley, 68 Ga. 175; Watts v. Finley, 187 Ga. 629, 634 (1 S. E. 2d, 723). This ruling. in no wise conflicts with what was held in Martin v. Citizens Bank of Marshallville, 180 Ga, 741 (180 S. E. 734), since the proposition there involved under the facts of the case is not now before us. In the instant case, the clearest indication of testatrix’s intention to create a remainder over after the termination of a life estate in favor of the son lies in the provision whereby she specifically directs that the widow of the son shall be included, but only as á life tenant, along with the legitimate heir of the son to take in remainder at his death.
A life estate being thus clearly indicated, by item ten of the will, the question arises, are the provisions of item eleven inconsistent with and controlling over those of item ten; and if so, do the provisions of item eleven enlarge the son’s life estate into a fee-simple title, as contended by the son? The Code, § 113-805, provides as follows: “An unconditional gift of the entire income of property or interest accruing from a fund shall be construed into a gift of the property or fund, unless the provisions of the will require a more limited meaning.” This court is convinced that a more limited meaning is clearly manifest by the language used in items ten and eleven of the will, nor do we find any inconsistencies
Judgment affirmed.
Reference
- Full Case Name
- SMITH v. SMITH
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- Published