DAVIDSON et al. v. BLACKWELL, administrator, et al.

Supreme Court of Georgia1921-09-13No. No. 2224

152 Ga. 48

Summary · law.co

Holding. The court affirmed the trial court's judgment, holding that the great-grandchildren plaintiffs acquired no interest in the property because: (1) their father's deed to Ellen Pendergrass conveyed any contingent interest he possessed, and (2) the testator's use of the term "grandchildren" does not encompass great-grandchildren absent express contrary intent.

The testator's will devised land to Ellen Pendergrass (a grandchild) in fee simple, defeasible if she died without children. Upon that contingency, the property was to pass to other named legatees—the testator's children and grandchildren—to be divided according to the will's terms. Ransom Aken, the plaintiffs' father, conveyed any remainder interest he possessed to Ellen Pendergrass during his lifetime. Ellen Pendergrass subsequently conveyed her interest to J. H. Bullard. The plaintiffs, who are great-grandchildren of the testator, claimed an interest in the property either through inheritance from their father or as beneficiaries under the will.

The court held that the plaintiffs could not take any interest in the property. First, because their father executed a deed to Ellen Pendergrass before his death, whatever contingent interest he might have acquired was conveyed away and could not pass to his heirs. Second, and independently, the term "grandchildren" in the will does not include great-grandchildren absent clear evidence of contrary intent. The court applied established Georgia precedent establishing that generational terminology in wills is construed according to its plain meaning. Accordingly, the plaintiffs had no claim under the will provisions favoring grandchildren.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether generational terminology in a will extends beyond its literal meaning
Whether a contingent interest can pass to an heir when the ancestor executed a conveyance during lifetime
Whether great-grandchildren qualify as "grandchildren" under the testator's intent

Procedural posture

The plaintiffs in error appealed from a trial court judgment determining that J. H. Bullard, the grantee of Ellen Pendergrass, held the disputed property interest to the exclusion of the plaintiffs' claims.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Gilbert, J.

Under the terms of the will Ellen Geiger, after-wards Ellen Pendergrass, a grandchild of the testator, took fee simple title to the land in question, defeasible upon her dying without child or children. Curles v. Wade, 151 Ga. 142 (106 S. E. 1). In the same item of the will it is further provided that on the occurrence of the event just mentioned the property devised to her "shall go to the other legatees named in this will, . . that is to say, to my children and grandchildren, to be divided between them as provided in Article 3rd above.” Article 3rd provides that the land be sold and the proceeds thereof “ equally divided between all of my children and grandchildren/’ except one specified grandson, and “ each set of my grandchildren to take such share as would he going to his or her or their parents were he or she - in life, and no more.” Ransom Ii. Aken, father of the plaintiffs in error, as appears from the statement of facts preceding, executed a deed during his lifetime to Ellen Pendergrass, conveying any remainder interest that he might have, and died previously to the death of Ellen Pendergrass. The question as to whether Ransom Aken, at the time of the execution of his deed, possessed an interest in the land which he was capable of conveying to Ellen Pendergrass, as against the grandchildren of the testator other than the plaintiffs m error, need not be decided; for, as we have pointed out further on in this decision, the plaintiffs in error, who are great-grandchildren of the testator, took no interest under the provisions of the will in favor of grandchildren. Any supposed claim of these plaintiffs in error is necessarily referable to their right of inheritance from Ransom Aken, their father; and if the estate in controversy here fell in to Ransom Aken, either upon the death -of the testator or upon the death of Ellen Pendergrass, so that had he never executed a conveyance to Ellen Pendergrass the plaintiffs in error would have inherited, when that estate did fall in, the deed which he executed to Ellen Pendergrass immediately became operative to convey the estate to her according to the terms of the conveyance, and, by reason of her deed, to the benefit of her grantee, J. IT. Bullard; so that in either event, irrespective of when the contingent interest vested, it was conveyed to Bullard by means of the deeds of Ransom Aken and Ellen Pendergrass. Isler v. Griffin, 134 Ga. 192 (4) (61 S. E. 854); Irby v. Smith, 147 Ga. 329 (93 S. E. 877).

Inasmuch as the ’plaintiffs in error, great-grandchildren of the testator, could not take this property by inheritance from Ransom Aken, his deed having conveyed whatever interest he might have had, the remaining question is whether they could take under the provisions in the will in favor of grandchildren; in other words, does the term “grandchildren” include “great-grandchildren,” the plaintiffs in error insisting that under the terms of the will the testator intended to include great-grandchildren. as well as grandchildren, to take the share or interest of their deceased parent. It has been decided by this court that the word “ children,” unless the will discloses a contrary intention, does not include grandchildren. Walker v. Williamson, 25 Ga. 549; Willis v. Jenkins, 30 Ga. 167; Crawley v. Kendrick, 122 Ga. 183 (50 S. E. 41, 2 Ann. Cas. 643); Lyon v. Baker, 122 Ga. 183 (50 S. E. 44); Fulghum v. Strickland, 123 Ga. 258 (51 S. E. 294); Smith v. Smith, 130 Ga. 532 (61 S. E. 114, 124 Am. St. R. 177); Brookings v. Trawick, 151 Ga. 335 (106 S. E. 550), and authorities cited. See also Pimel v. Betjemann, 183 N. Y. 194 (76 N. E. 157 2 L. R. A. (N. S.) 580, 5 Ann. Cas. 239); 1 Words & Phrases (2d Series), 675. The same principle would apply,in considering the intention of the maker of a will who had referred therein to children and grandchildren, as to whether it was his intention to include greatrgrandehildren. 28 R. C. L. 253; Cummings v. Plummer, 94 Ind. 403 (48 Am. R. 167); Thomas v. Thomas, 97 Miss. 697 (7) (53 So. 630); 40 Cyc. 1455. In view of the authorities just cited we find no basis upon which the words “ children and grandchildren,” as employed in this will, can be construed to include great-grandchildren. It necessarily follows that since the plaintiffs in error are great-grandchildren, they acquired no interest in the land in question on the death of Ellen Pendergrass. Moreover, if the estate of Eansom Aken, the father of the plaintiffs in error, acquired any interest in the land at the death of Ellen Pendergrass, it would operate to the benefit of the grantee in his deed, relating back to the time of the grant, and would serve to convey that title and interest out of the estate. Ellen Pendergrass having, in her lifetime, conveyed the title to J. H. Bullard, it would necessarily follow that the trial court correctly decided that J. H. Bullard acquired an interest which otherwise would have gone to Eansom H. Aken on the death of Ellen Pendergrass.

Judgment affirmed.

All the Justices concur.