O.C.G.A. § 44-6-25 (2019)

Annotations

Law reviews. - For article, ‘‘Descendible Future Interests in Georgia: The Effect of the Preference for Early Vesting,’’ see 7 Ga.

L. Rev. 443 (1973). For article surveying real property law, see 34 Mercer L. Rev. 255 (1982).

JUDICIAL DECISIONS Will made prior to 1854 controlled by common law. - Whether words in a will made by a testator who died before the Act of February 17, 1854, create an estate tail is to be controlled by the decisions of the English courts construing such or similar words in devises of real property in connection with the Statute De Donis Conditionalibus. Hertz v. Abrahams, 110 Ga. 707, 36 S.E. 409, 50 L.R.A. 361 (1900). Common-law devise limited upon indefinite failure of issue. - At common law, a devise to A and, in case of A’s death without issue, to B, was a devise limited upon an indefinite failure of issue, which, under the English rules of interpretation, created an estate tail by implication under the Statute De Donis. An executory devise which was limited upon words importing an indefinite failure of issue of the first taker was void for

remoteness. Hertz v. Abrahams, 110 Ga. 707, 36 S.E. 409, 50 L.R.A. 361 (1900). Effect. - This statute swept away at one blow all the mass of legal lore on limitations and perpetuities. Gray v. Gray, 20 Ga. 804 (1856); Forman v. Troup, 30 Ga. 496 (1860) (see O.C.G.A. § 44-6-25). This statute is not a declaratory statute of any former law, and the statute converts into a defeasible fee what before the statute’s enactment was an estate tail by implication. Worrill v. Wright, 25 Ga. 657 (1858); Hertz v. Abrahams, 110 Ga. 707, 36 S.E. 409, 50 L.R.A. 361 (1900) (see O.C.G.A. § 44-6-25). Effect upon Rule in Shelley’s Case. - Effect of this statute is the vertical abolition of the Rule in Shelley’s Case as to limitations over in conveyances. This abolition results only incidentally from the change in the rules of construction which previously ob-

tained, so that now the words of limitation enumerated are made words of purchase and the children take from the grantor or devisor as purchasers rather than from the devisee or grantee by inheritance. Smith v. Collins, 90 Ga. 411, 17 S.E. 1013 (1892) (see O.C.G.A. § 44-6-25). Section prevents creation of implied fee tail. - Since a limitation of the type referred to in 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. Raines v. Duskin, 247 Ga. 512, 277 S.E.2d 26 (1981). ‘‘Lineal heirs’’ equivalent to ‘‘issue’’. - It is quibbling to say that ‘‘lineal heirs’’ is not an equivalent term to ‘‘issue.’’ The mischief in both cases is the same, and the same remedy applies. Forman v. Troup, 30 Ga. 496 (1860). Dying ‘‘without bodily heirs’’. - ‘‘Bodily heirs’’ is not specifically enumerated in O.C.G.A. § 44-6-25. However, dying ‘‘without bodily heirs’’ is equivalent to dying ‘‘without issue.’’ Raines v. Duskin, 247 Ga. 512, 277 S.E.2d 26 (1981). Section applied to create determinable fee. - See Greer v. Pate, 85 Ga. 552, 11 S.E. 869 (1890); Davis v. Hollingsworth, 113 Ga. 210, 38 S.E. 827, 84 Am. St. R. 233 (1901); Shealy v. Wammock, 115 Ga. 913, 42 S.E. 239 (1902); Kinard v. Hale, 128 Ga. 485, 57 S.E. 761 (1907); Nottingham v. McKelvey, 149 Ga. 463, S.E. (1919); Scranton-Lackawanna Trust Co. v. Bruen, 206 Ga. 872, 59 S.E.2d 397 (1950). Will devising to T to hold the same to T’s heirs, executors, and assigns forever, except should T die without lineal heirs to go to the children of X, or the survivors, refers to a

definite failure of issue, and creates a fee simple determinable upon death without lineal descendants; passing in such case to the children of X, rather than creating a fee tail and hence a fee simple in T, under Laws 1821, Cobb’s 1851 Digest, p. 169 (see O.C.G.A. § 44-6-24). Forman v. Troup, 30 Ga. 496 (1860); Burton v. Black, 30 Ga. 638 (1860). Unless there is something to indicate a contrary intent on the part of the testator, a devise or bequest to a named person, followed by a provision that if one shall die childless the property shall pass to some other person, conveys to one a fee, subject to be divested upon one’s dying childless, or, as it is sometimes called, a base or qualified fee. Scranton-Lackawanna Trust Co. v. Bruen, 206 Ga. 872, 59 S.E.2d 397 (1950). Section applied to create life estate with contingent remainder. - See Fulcher v. Mixon, 55 Ga. 72 (1875); Nussbaun & Dannenberg v. Evans, 71 Ga. 753 (1883); Lumpkin v. Patterson, 170 Ga. 94, 152 S.E. 448 (1930). Devise to X ‘‘for his life with remainder in fee to his surviving issue, if any; and if none then to the heirs’’ of Y, created a life estate in X with a contingent remainder in X’s heirs which accords with this statute. Wright v. Hill, 140 Ga. 554, 79 S.E. 546 (1913) (see O.C.G.A. § 44-6-25). Cited in Cook v. Walker, 15 Ga. 457 (1854); Hollifield v. Stell, 17 Ga. 280 (1855); Childers v. Childers, 21 Ga. 377 (1857); Wilkerson v. Clark, 80 Ga. 367, 7 S.E. 319, 12 Am. St. R. 258 (1888); 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); Megahee v. Hatcher, 146 Ga. 498, 91 S.E. 677 (1917); Whittle v. Speir, 235 Ga. 14, 218 S.E.2d 775 (1975); Dunn v. Sanders, 243 Ga. 684, 256 S.E.2d 366 (1979).

RESEARCH REFERENCES Am. Jur. 2d. - 28 Am. Jur. 2d, Estates, §§ 48 et seq., 415 et seq. C.J.S. - 26A C.J.S., Deeds, §§ 247, 253, 254, 264 et seq., 274 et seq. 31 C.J.S., Estates, §§ 24 et seq., 145 et seq. 70 C.J.S., Perpetuities, §§ 11, 13, 18. 96 C.J.S., Wills, §§ 1258, 1261 et seq., 1270. ALR. - Meaning of term ‘‘issue’’ where

used as a word of purchase, 2 ALR 930; 117 ALR 691. Fee simple conditional, 114 ALR 602. Nature of estates or interests created by grant or devise to one and heirs if donee should have any heirs, 16 ALR2d 670. Validity of restraint, ending not later than expiration of a life or lives in being, on

alienation of an estate in fee, 42 ALR2d 1243.

ARTICLE 3 ESTATES GRANTED UPON CONDITIONS Law reviews. - For article, ‘‘Creation of Defeasible Fees,’’ see 15 Ga. B.J. 20 (1952). For article surveying Georgia cases in the area of real property from June 1977 through May 1978, see 30 Mercer L. Rev. 167 (1978).

For comment on Phillips v. Naff, 332 Mich. 389, 52 N.W.2d 158 (1952), see 15 Ga. B.J. 71 (1952).

JUDICIAL DECISIONS While forfeitures are not favored, forfeitures are not altogether prohibited in this state. Cotton States Mut. Ins. Co. v. Torrance, 110 Ga. App. 4, 137 S.E.2d 551 (1964), aff ’d, 220 Ga. 639, 140 S.E.2d 840 (1965).

Cited in Golden v. National Life & Accident Ins. Co., 189 Ga. 79, 5 S.E.2d 198 (1939).

RESEARCH REFERENCES ALR. - Commencement of development within fixed term as extending term of oil and gas lease, 67 ALR 526. Deed in consideration of support of grantor as creating an estate upon condition or a conditional limitation, 76 ALR 742. Use or exploitation of property for a purpose other than, but not exclusive of, use specified by a deed creating a determinable fee or a fee simple subject to condition subsequent, 137 ALR 639. ‘‘Divide and pay over’’ rule, for purpose of determining vested or contingent character

of future estate, 144 ALR 1155; 16 ALR2d 1383. Commencement of running of statute of limitations respecting actions by owners of right of re-entry, or actions against third persons by reversioners, 19 ALR2d 729. Construction and application of ‘‘first refusal’’ option contained in trust instrument and relating to sale or shares of stock, 51 ALR3d 1327. Laches or delay in bringing suit as affecting right to enforce restrictive building covenant, 25 ALR5th 233.