O.C.G.A. § 44-6-68 (2019)

Annotations

Law reviews. - For comment on Broach v. Hester, 217 Ga. 59, 121 S.E.2d 111 (1961), see 14 Mercer L. Rev. 471 (1963).

JUDICIAL DECISIONS

Estate for widowhood recognized. - Estate for widowhood, as known to the common law, is recognized in this state and provided for by the terms of this statute. The creation of a fee defeasible by marriage is not necessarily in restraint of marriage, because the beneficiary is submitted to an election between the acceptance of the gift and remarriage, should she prefer to remarry. Logan v. Hammond, 155 Ga. 514, 117 S.E. 428 (1923) (see O.C.G.A. § 44-6-68).

Gift for widowhood not void unless intention to impose penalty manifest and unequivocal. - Condition imposed by a testator upon a gift to his widow, to the effect that upon her remarriage the devise shall pass to his other heirs named, is not void as being in restraint of marriage. The intention to impose a penalty in terrorem must be manifest and unequivocal. Logan v. Hammond, 155 Ga. 514, 117 S.E. 428 (1923).

Statute applies to contracts as well as to the provisions of a will. Holder v. Holder, 226 Ga. 254, 174 S.E.2d 408 (1970), overruled on other grounds, Scott v. Scott, 276 Ga. 372, 578 S.E.2d 876 (2003) (see O.C.G.A. § 44-6-68).

Cotenant's estate not affected when restraints against widow invalid. - When an estate was devised to X, and widow during her widowhood, even if the provisions were invalid as being in restraint of marriage, it would not affect the estate granted to X. McCarty v. Mangham, 144 Ga. 198, 86 S.E. 555 (1915).

Estates for widowhood are subject to the same rules as life estates. Among the rules applicable to life estates are the provisions of former Civil Code 1910, § 3666 (see O.C.G.A. § 44-6-83). Lee & Bradshaw v. Rogers, 151 Ga. 838, 108 S.E. 371 (1921).

Agreement to change child custody upon remarriage not void. - Agreement for the custody of the children to change to the father upon the remarriage of the mother does not manifest an intention that the agreement will operate in restraint of remarriage, and is not void as being in restraint of marriage. Holder v. Holder, 226 Ga. 254, 174 S.E.2d 408 (1970), overruled on other grounds, Scott v. Scott, 276 Ga. 372, 578 S.E.2d 876 (2003).

Cited in McCray v. Caves, 211 Ga. 770, 88 S.E.2d 373 (1955).

RESEARCH REFERENCES

Am. Jur. 2d. - 28 Am. Jur. 2d, Estates, §§ 279, 310.

C.J.S. - 31 C.J.S., Estates, § 78. 96 C.J.S., Wills, § 1276.

ALR. - Misconduct of surviving spouse as affecting marital rights in other's estate, 139 A.L.R. 486.

Remarriage tables, 25 A.L.R.2d 1464.

- - - - - - - - - -

ARTICLE 5 LIFE ESTATES

Law reviews. - For article surveying Georgia cases in the area of real property from June 1977 through May 1978, see 30 Mercer L. Rev. 167 (1978).

JUDICIAL DECISIONS

Limitations on rights of executors and life tenants to alienate estate. - Neither an executor nor a trustee has authority to enter into a contract granting an option to purchase land belonging to an estate, absent an express grant of such power. By analogy, unless express authority is granted, the life tenant with other broad authority does not have the power to will the property at the life tenant's death, nor to lease property for a time extending beyond the life tenant's own term; such leases have been described as "absolutely void" after the life tenant's death. Phillips v. Sexton, 243 Ga. 501, 255 S.E.2d 15 (1979).

RESEARCH REFERENCES

ALR. - Lease of property as ademption or revocation of devise, 8 A.L.R. 1638.

Requiring security from life tenant for protection of remaindermen, 14 A.L.R. 1066; 101 A.L.R. 271; 138 A.L.R. 440.

Duty of life tenant or life beneficiary to pay taxes, 17 A.L.R. 1384; 94 A.L.R. 311; 126 A.L.R. 862.

Right of one who furnishes support to another entitled to life support from property, as against such property or the owners of present or future estates therein, 31 A.L.R. 658.

Absolute power of disposition in life tenant as elevating life estate to fee, 36 A.L.R. 1176.

Right of remainderman or his privies to require disclosure or accounting by life tenant, 45 A.L.R. 519.

Relative rights of income or life beneficiary and of corpus or remaindermen in return on bonds or other obligations for the payment of money, and in profits from a sale thereof, and corresponding duties of trustee, 48 A.L.R. 689; 131 A.L.R. 1426.

Life tenant's liability for waste as affected by assignment or transfer of his interest, 71 A.L.R. 1187.

Taking or holding by one spouse of an interest or estate terminable at death as constituting fraud on marital rights of the other spouse in the estate of the former, 79 A.L.R. 377.

Duty of life tenant or life beneficiary to pay taxes, 94 A.L.R. 311; 126 A.L.R. 862.

Life interest and remainder in corporate stock as affecting stockholder's statutory liability, 99 A.L.R. 505.

Income tax in respect of that part of extraordinary cash dividend on stock held by trustee that is allocated to corpus as regards respective rights of life beneficiary and remaindermen, 99 A.L.R. 518.

Construction of provisions of will or other instrument creating trust to effect that losses or depreciation of corpus shall be made good out of income, 99 A.L.R. 718.

Relative rights of life beneficiary and remainderman as to return on bonds or other obligations for the payment of money, bought at a premium or at a discount, 101 A.L.R. 7; 131 A.L.R. 1426.

Commutation of life tenant's interest in fund realized from sale of property into estimated present value, 102 A.L.R. 969.

Rights and duties of life tenant with power to anticipate or enjoy principal, 114 A.L.R. 946.

Rights of life tenant (legal or equitable) and remaindermen in respect of amount paid by lessee in consideration of release, 121 A.L.R. 900.

Apportionment of income where right to income commences or ends during accrual period, 126 A.L.R. 12.

Rights, duties, and liabilities of life tenant (legal or equitable) and remaindermen in respect of property insurance or proceeds thereof, 126 A.L.R. 336.

Rights, powers, and duties in respect of sale or transfer of corporate stock in which one holds a legal life estate, 126 A.L.R. 1298.

Disposition of decedent's share of income or property during interval between deaths of life beneficiaries sharing therein, where remainder was given over after death of all life beneficiaries, 140 A.L.R. 841; 71 A.L.R.2d 1332.

Rule in Shelley's Case as affected by failure of life estate prior to operative date of instrument, 145 A.L.R. 1227.

Provision of will for life beneficiary as giving him a legal life estate or as creating a trust, 147 A.L.R. 605.

Uniform Principal and Income Act as applicable to estates under administration, 166 A.L.R. 428.

Invasion of principal in behalf of income beneficiary, absent or contrary to provision of trust instrument in that regard, 1 A.L.R.2d 1328.

Murder of life tenant by remainderman or reversioner as affecting latter's right to remainder or reversion, 24 A.L.R.2d 1120.

What acts, claims, circumstances, instruments, color of title, judgment, or thing of record will ground adverse possession in a life tenant as against remaindermen or reversioners, 58 A.L.R.2d 299.

Grant, reservation, or exception as creating separate and independent legal estate in solid minerals or as passing only incorporeal privilege or license, 66 A.L.R.2d 978.

Disposition of decedent's share of income or property during interval between deaths of life beneficiaries sharing therein, where remainder was given over after death of all life beneficiaries, 71 A.L.R.2d 1332.

Validity of life tenant's exercise of power of sale as affected by fact that conveyance is, directly or indirectly, to him, his spouse, or his relative, 89 A.L.R.2d 649.

Distribution as between life tenant and remainderman of proceeds of condemned property, 91 A.L.R.2d 963.

Duty as between life tenant and remainderman as respects payment of improvement assessments, 10 A.L.R.3d 1309.

Implication of right of life tenant to entrench upon or dispose of corpus from language contemplating possible diminution or elimination of gift over, 31 A.L.R.3d 6.

Rights as between estate of life tenant and remainderman in respect of proceeds of sale or disposition made in exercise of power given life tenant, 47 A.L.R.3d 1078.

Court's power to order sale of property subject to legal life estate, in order to relieve economic distress of life tenant, 57 A.L.R.3d 1189.

Right of life tenant with power to anticipate or consume principal to dispose of it by inter vivos gift, 83 A.L.R.3d 135.