Estate vested when present right of enjoyment exists.

- Estate is vested when there is an immediate right of enjoyment or a present fixed right of future enjoyment. Lassiter v. Bank of Dawson, 191 Ga. 208, 11 S.E.2d 910 (1940).

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. Gilmore v. Gilmore, 197 Ga. 303, 29 S.E.2d 74 (1944).

Remainder is vested if there is no condition precedent save termination of the preceding estate. Johnson v. Wishard, 227 Ga. 355, 180 S.E.2d 738 (1971).

Vested remainder is estate in fee, although subject to defeasance by subsequent contingencies.

- If the remainder vests as of the date of the testator's death, it is an estate in fee, notwithstanding it is subject to defeasance by subsequent contingencies; the presumption is in favor of prompt vesting. However, a trust is still executory until the period contemplated for its termination expires, provided it remains uncertain whether at the end of the trust period the original legatee is to take or someone else is to take. The trust is kept open to enable the trustee to ascertain the objects of the trust. Sanders v. First Nat'l Bank, 189 Ga. 450, 6 S.E.2d 294 (1939).

Devise of land is presumed to be vested and not contingent. There is a strong presumption in favor of early vesting rather than more remote vesting. Raney v. Smith, 242 Ga. 809, 251 S.E.2d 554 (1979).

Titles should vest at earliest period.

- Sound policy and practical convenience require that titles should be vested at the earliest period, and it has long been a settled rule of construction in the courts of England and America that estates, legal or equitable, given by will or deed should always be regarded as vesting immediately, unless the intention is clearly to the contrary. Wilbur v. McNulty, 75 Ga. 458 (1885).

Law favors the vesting of remainders at the earliest possible moment. Federal Reserve Bank v. Spearman, 176 Ga. 236, 167 S.E. 603 (1933).

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).

Absent a manifest intention to the contrary, the law favors early vesting of remainders. First Presbyterian Church v. Price, 248 Ga. 38, 280 S.E.2d 830 (1981).

Construction construing remainder as vested preferred.

- In cases of doubt as to the character of a remainder, if to construe it as contingent an intestacy would arise, and if to construe it as vested an intestacy would not arise, a construction construing it as vested would be preferable, since intestacies are not generally favored in construing wills. Gilmore v. Gilmore, 197 Ga. 303, 29 S.E.2d 74 (1944).

If the expression relied upon to limit a fee once devised is doubtful, the doubt should be resolved in favor of the absolute estate. Montgomery v. Pierce, 212 Ga. 545, 93 S.E.2d 758 (1956).

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).

Presumption that testator intended that remainder vests at moment will becomes operative.

- In the present case there seems to be no clear manifestation of an intent to postpone the vesting of the title in the remaindermen, and therefore it is to be presumed that the testator intended that the remainder interest should vest at the moment when the will became operative. If there is doubt on this question, it must be resolved in favor of the earlier vesting. Powell v. McKinney, 151 Ga. 803, 108 S.E. 231 (1921); Toucher v. Hawkins, 158 Ga. 482, 123 S.E. 618 (1924).

Devise to children as class.

- 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. The interest of any that might die before the period of distribution pass 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); Toucher v. Hawkins, 158 Ga. 482, 123 S.E. 618 (1924).

Devise to testator's "lawful heirs".

- Devise of realty for life, with remainder to a testator's "lawful heirs", vests the remainder in those answering such a description at the time of the testator's death, unless the will evidences a manifest intention to the contrary, though the life tenant is one of the class who will take the remainder. Payne v. Brown, 164 Ga. 171, 137 S.E. 921 (1927).

Presumption gives way only if clear intent of contingency.

- Presumption in favor of an early vesting will give way only if there is a clear intent to make the interest subject to a contingency. Raney v. Smith, 242 Ga. 809, 251 S.E.2d 554 (1979).

Ambiguity not created if none exists.

- When the language employed by the testator is clear and unambiguous, the Supreme Court will not, just to create a vested remainder, by construction create an ambiguity if none exists. Veach v. Veach, 205 Ga. 185, 53 S.E.2d 98 (1949).

When clear intent to make remainder contingent, intent controls.

- While the law favors the vesting of remainders, and a remainder will be construed to become indefeasibly vested at the earliest possible moment, the language of each particular instrument construed as a whole, showing the intent and purpose of the grantor or testator, must be given effect; if the instrument creating the remainder should be specific language, consistent with a clear intent of the maker as gathered from the entire instrument, make the remainder itself subject to a contingency, the intent of the maker, if lawful, will control. Britt v. Fincher, 202 Ga. 661, 44 S.E.2d 372 (1947).

In passing on meaning of clause in will, courts should use analogies of previous cases.

- While it is true that every will is a thing to itself, and when it comes to the construction of a will, precedents are of less value than is commonly true in other questions, nevertheless, courts should, in passing upon the meaning of a clause in a will, use the analogies that have occurred in previous cases. Moody v. Baxley Turpentine Corp., 195 Ga. 482, 24 S.E.2d 652 (1943).

Words of survivorship refer to time of testator's death, unless contrary intent manifested.

- When no special intent is manifested to the contrary, words of survivorship will have reference to the time of the death of the testator, and not to the time of the death of the life tenant. Speer v. Roach, 145 Ga. 852, 90 S.E. 57 (1916); Moore v. Cook, 153 Ga. 840, 113 S.E. 526 (1922).

Intent deducible from language.

- Whether a testator manifestly intends that words of survivorship should refer to the death of another in a given case will depend upon the language of the will. In Dudley v. Porter, 16 Ga. 613 (1855), words of survivorship expressed in a deed were held to refer to the death of one other than the grantor. Roberts v. Wadley, 156 Ga. 35, 118 S.E. 664 (1923).

Survivorship referred to future time fixed for division or distribution.

- When a future time is fixed for a division or distribution, there are decisions which hold that words of survivorship will be referred to such a time, in the absence of anything to show a contrary intent. But if the instrument, whether a will or a deed, shows clearly a different intent on the part of the maker, it will control. Sterling v. Huntley, 139 Ga. 21, 76 S.E. 375 (1912).

Vested remainder found.

- In case of a devise to two daughters for their lives, and after their respective deaths, to the child or children of the daughters, the remainder vested, at the testator's death, in the children then living, to be enjoyed at the death of the surviving daughter, but subject to open and take in the children born between the time of vesting and time of enjoyment; all took per capita. Olmstead v. Dunn, 72 Ga. 850 (1884); DeVane v. Young, 154 Ga. 832, 115 S.E. 661 (1923).

By the rule in aid of the early vesting of estates in the case of gifts to unmarried women for life, with a remainder to the husband, the first who answers to the description is to be considered to have been intended by the testator as the recipient of the testator's bounty. Jossey v. Brown, 119 Ga. 758, 47 S.E. 350 (1904).

When the testator created an estate for his wife during life or widowhood, and directed that, if his wife should die or marry, "a sale be made of all my property, both real and personal, and the proceeds be equally divided among my children," the children of the testator who survived him took, at his death, a vested remainder estate, and that this was not changed by the direction to sell and divide the proceeds. Crossley v. Leslie, 130 Ga. 782, 61 S.E. 851, 14 Ann. Cas. 703 (1908).

When the language under construction was a bequest of real and personal property to the wife of the testator, for the raising and education of the testator's children, "during her natural life; and at her death to be equally divided among all his surviving children, and the legal representatives of such as may be deceased," the words of survivorship had reference to the death of the testator, and not that of the life tenant, and that the children who were in life at the testator's death took vested remainders under the testator's will, to be enjoyed after the death of the tenant for life. Crossley v. Leslie, 130 Ga. 782, 61 S.E. 851, 14 Ann. Cas. 703 (1908).

Will devised to the wife of the testator certain land for and during her natural life, and then provided, "after her death to be sold, and the proceeds to be equally divided between my surviving children and the children of any of my deceased children." The words of survivorship applied to the death of the testator, and the persons designated took a vested remainder interest at the testator's death. Crossley v. Leslie, 130 Ga. 782, 61 S.E. 851, 14 Ann. Cas. 703 (1908); Green v. Driver, 143 Ga. 134, 84 S.E. 552 (1915).

Following this section, as governing in cases when the intention of the grantor is not so expressed as to be free from doubt, not being able to say that the grantor in the deed under consideration did not intend to employ the word "vest" as meaning a vesting in possession, the court construes the deed which provides "to C for life and then to vest in such child as born or may be born of our marriage" as creating at the time of the deed's execution a vested remainder in such children as were then in life, subject to open up and let in a vested remainder interest to children thereafter born to them. Burney v. Arnold, 134 Ga. 141, 67 S.E. 712 (1910).

When a testator by will bequeathed and devised a life estate in described property to the testator's 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 when one of the daughters of the testator had three children, one of whom predeceased the mother, and before the child's death mortgaged the child's interest in the estate, the grandchild of the testator took a vested remainder in the property in controversy, subject to be divested upon the mother dying without a child or grandchildren. Federal Reserve Bank v. Spearman, 176 Ga. 236, 167 S.E. 603 (1933).

When the will gave the tract to the plaintiff's grandmother for life, with 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).

When a codicil in a will provides "My house I give to my brother after the death of my wife should my wife be the longest liver," given the policy embodied in this statute that the law favors the vesting of remainders in all cases of doubt, and the fact that in construction of wills in general words of survivorship are presumed to refer to the death of the testator in order to vest remainders unless a manifest intention to the contrary shall appear, words of survivorship in this codicil, viz., "should my wife be the longest liver," refer to the death of the testator. Gilmore v. Gilmore, 197 Ga. 303, 29 S.E.2d 74 (1944) (see O.C.G.A. § 44-6-66).

In an action in ejectment brought to recover land purchased by the defendant from a life tenant, where the will under which both parties claimed title disclosed that the petitioner, as a grandchild of the testator, received title in fee to the lands in question with a life interest in said property to his father, which was subject to a forfeiture "should any child or children sell or move away from said lands, then and in that event, the income from the share of any such child shall be equally divided among the remaining children until the death of such child or children, when said share shall become the property of their children in the fee simple," and the undisputed evidence showed that the life tenant sold the fee (the defendant claiming through this chain of title) and the action was filed within a seven-year period after the death of the life tenant, verdict was demanded in favor of the petitioner, and the court did not err in directing such a verdict. O'Kelley v. Jackson, 210 Ga. 539, 81 S.E.2d 454 (1954).

When there is no language in the will which plainly manifests an intention to divest the share of a son who survived the testator, but predeceased the life tenant, leaving no child or children to be substituted devisees, the son has a vested remainder interest which will pass by inheritance. Witcher v. Witcher, 231 Ga. 49, 200 S.E.2d 110 (1973).

Trial court properly determined that a younger brother was entitled to all of the proceeds of a trust because the other siblings had previously unequivocally waived any interest in the trust assets and the younger brother was the sole surviving child who had not waived any interest in the trust. White v. Call, 292 Ga. 565, 738 S.E.2d 617 (2013).

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).

For additional cases stating the rule favoring the vesting of certain legacies at testator's death, see Vason v. Estes, 77 Ga. 352, 1 S.E. 163 (1887); Legwin v. McRee, 79 Ga. 430, 4 S.E. 863 (1887); Fields v. Lewis, 118 Ga. 573, 45 S.E. 437 (1903); Crossley v. Leslie, 130 Ga. 782, 61 S.E. 851, 14 Ann. Cas. 703 (1908); Mendel v. Stein, 144 Ga. 107, 86 S.E. 220 (1915); Wilcher v. Walker, 144 Ga. 526, 87 S.E. 671 (1916); Munford v. Peeples, 152 Ga. 31, 108 S.E. 454 (1921).

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 where, 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.

- It is undoubtedly the rule declared by this statute that, in construing wills, words of survivorship shall refer to the death of the testator in order to vest remainders, unless a manifest intention to the contrary appears. The trouble in this case is that a manifest intent to the contrary appears. The testator expressly provided for the devolution of the estate if a niece should die before the testator died. Phinizy v. Wallace, 136 Ga. 520, 71 S.E. 896 (1911) (see O.C.G.A. § 44-6-66).

In case of the death of the grantor's daughter without leaving children or the representatives of children, the property was conveyed "to her brother or brothers, and their children surviving." It was contended that the word "surviving" meant children surviving their respective parents. The word "surviving" refers to surviving the life tenant. This construction is more in accord with the spirit of this statute. Duke v. Huffman, 138 Ga. 172, 75 S.E. 1 (1912) (see O.C.G.A. § 44-6-66).

Language of the deed, considered as a whole, plainly shows that the grantor did not use the words "dying without issue" as meaning so dying before the termination of the life estate, but that those words had reference to the time of the death of the daughter. Sterling v. Huntley, 139 Ga. 21, 76 S.E. 375 (1912).

Language "I will that in case G dies his portion to go to my other children," was intended to create a contingency, the happening of which would divest G of G's share in the already vested estate. In case of doubt the law favors the vesting remainders at the earliest time. It is true the word "survivor" is not used in this case, but the testator had in view the idea of survivorship after some one else had died. The testator had in view the death of G before the death of the life tenant - in that event G's share was to go to the "balance" of the testator's children. Almand v. Almand, 141 Ga. 372, 81 S.E. 228 (1914).

"Should all of my daughters marry, or should all the unmarried daughters depart this life, then, on the happening of either event, the estate to be divided between our then surviving children. . . ." The word "then" was used twice, and in the second instance, that is in the clause "divided equally between our then surviving children" it was employed as an adverb of time. The estate in remainder was contingent, because it was uncertain as to the person who would take until the death of the last of the testator's unmarried daughters. "Then," at the death of the last of the testator's daughters who did not marry, the persons to take were definitely ascertainable, and there was no longer uncertainty as to the person who would take. The words of survivorship manifestly referred to the marriage of the last of the daughters to marry or to the death of the last unmarried daughter, and not to the death of the testator. Roberts v. Wadley, 156 Ga. 35, 118 S.E. 664 (1923).

Am. Jur. 2d.

- 28 Am. Jur. 2d, Estates, §§ 255, 280 et seq, 303 et seq.

C.J.S.

- 26A C.J.S., 251, 252, 389, 390. 31 C.J.S., Estates, §§ 1, 102. 96 C.J.S., Wills, §§ 1336, 1351, 1369.

ALR.

- Gift to one "provided" or "providing" he attains a certain age as vested or contingent, 71 A.L.R. 1051.

Devise of remainder to "husband," "wife," or "widow" as vested or contingent, 86 A.L.R. 229.

Vested or contingent character of remainder under devise of a remainder to a certain person or persons "or" his or their heirs or other class, 128 A.L.R. 306.

Effect of premature termination of precedent estate to accelerate remainder of which there is an alternative substitutional gift, 164 A.L.R. 1297.

Effect of premature termination of precedent estate to accelerate a contingent remainder, 164 A.L.R. 1433.

"Divide and pay over" rule, for purpose of determining vested or contingent character of estate, 16 A.L.R.2d 1383.

Nature of remainders created by will giving life estate to spouse of testator, with remainder to be divided equally between testator's heirs and spouse's heirs, 19 A.L.R.2d 371.

Words of survivorship in will disposing of estate in remainder as referable to death of testator or to termination of intervening estate, 20 A.L.R.2d 830.

Provision of will that children, etc., of remainderman who dies before expiration of precedent estate or time fixed for distribution to remaindermen, shall take the share to which he would have been entitled, as affecting the character of remainder as vested or contingent, 47 A.L.R.2d 900.

Delivery or distribution to life tenant, or assent by executor to his possession or to the life interest, as inuring to benefit of the remaindermen and operating to take the remainder out of the estate, absent a trust or will provision retaining it, 68 A.L.R.2d 1107.

Doctrine that gift which might be void under rule against perpetuities will be given effect where contingency actually occurs within period of rule, 20 A.L.R.3d 1094.

Time to which condition of remainderman's death refers, under gift or grant to one for life or term of years and then the remainderman, but if remainderman dies without issue, then over to another, 26 A.L.R.3d 407.