2020 Georgia Code
Title 44 - Property
Chapter 6 - Estates
Article 2 - Fee Simple Estates
§ 44-6-21. Words Necessary to Create Absolute Estate; Preference for Construing as Conveyance; Maker's Intention Controls; Parol Evidence

The word "heirs" or its equivalent is not necessary to create an absolute estate. Every properly executed conveyance shall be construed to convey the fee unless a lesser estate is mentioned and limited in that conveyance. If a lesser estate is expressly limited, the courts shall not, by construction, increase such estate into a fee but, disregarding all technical rules, shall give effect to the intention of the maker of the instrument, as far as the same is lawful, if the intention can be gathered from the contents of the instrument. If the court cannot gather the intention of the maker from the contents of the instrument, it may hear parol evidence to prove the maker's intention.

(Laws 1821, Cobb's 1851 Digest, p. 169; Code 1863, § 2228; Code 1868, § 2222; Code 1873, § 2248; Code 1882, § 2248; Civil Code 1895, § 3083; Civil Code 1910, § 3659; Code 1933, § 85-503.)

- For comment on Grant v. Haymes, 164 Ga. 371, 138 S.E. 892 (1927), see 1 Ga. L. Rev. 45 (1927). For comment on Bienvenu v. First Nat'l Bank, 193 Ga. 101, 17 S.E.2d 257 (1941), see 4 Ga. B.J. 45 (1942).

ANALYSIS

• General Consideration
• Rules of Construction

General Consideration

Purpose of section.

- In England, it was necessary in order to create a fee that some word of inheritance should be contained in the conveyance. A deed of land to A vested a life estate only. In this state every man is his own scrivener. It was found that in many, if not in most deeds, words of inheritance were omitted, notwithstanding it was the intention of the parties to pass the fee. Clements v. Glass, 23 Ga. 395 (1857).

Purpose of this statute is to enlarge estates and make a fee more easily created than at common law. Burton v. Black, 30 Ga. 638 (1860) (see O.C.G.A. § 44-6-21).

Estates by implication are not favored. McCord v. Whitehead, 98 Ga. 381, 25 S.E. 767 (1896); Comer v. Citizens & S. Nat'l Bank, 182 Ga. 1, 185 S.E. 77 (1935); Raines v. Duskin, 247 Ga. 512, 277 S.E.2d 26 (1981).

- Whenever one seeks to sell property or negotiates for its sale, the presumption is that one's purpose is to convey an absolute estate, unless a lesser estate is expressly mentioned and limited. Richards v. East Tenn., V. & Ga. Ry., 106 Ga. 614, 33 S.E. 193 (1899).

Every conveyance properly executed shall be a fee unless expressly limited. Hill v. Terrell, 123 Ga. 49, 51 S.E. 81 (1905).

Every conveyance should be construed to convey the fee unless a lesser estate is mentioned and limited. Comer v. Citizens & S. Nat'l Bank, 182 Ga. 1, 185 S.E. 77 (1935).

- No less estate in an easement being expressed, an estate in fee therein should be understood, in harmony with this statute. Trustees, Atlanta Univ. v. City of Atlanta, 93 Ga. 468, 21 S.E. 74 (1893) (see O.C.G.A. § 44-6-21).

- Any word or words which import a fee simple can have no effect upon the conveyance as to the quantity of the estate, but the conveyance will pass the fee without, as effectually as with them; except when a less estate is expressed, the fee always passes. Wilkerson v. Clark, 80 Ga. 367, 7 S.E. 319, 12 Am. St. R. 258 (1888); Featherston Mining Co. v. Young, 118 Ga. 564, 45 S.E. 414 (1903).

Use of the word "heirs" is wholly unnecessary under this statute. Andrews v. Atlanta Real Estate Co., 92 Ga. 260, 18 S.E. 548 (1893) (see O.C.G.A. § 44-6-21).

Words of inheritance are no longer necessary to convey an estate in fee simple to the grantor by reservation in a deed. In the case of an exception, words of inheritance are necessary. Grant v. Haymes, 164 Ga. 371, 138 S.E. 892 (1927).

No mention of heirs or successors or assigns is necessary to convey a complete title. Florida Blue Ridge Corp. v. Tennessee Elec. Power Co., 106 F.2d 913 (5th Cir. 1939), cert. denied, 309 U.S. 666, 60 S. Ct. 591, 84 L. Ed. 1013 (1940).

- Court will not by construction reduce an estate once devised absolutely in fee by limitations contained in subsequent parts of the will, unless the intention to limit the estate is clearly and unmistakably manifest. Smith v. Slade, 151 Ga. 176, 106 S.E. 106 (1921); Daniel v. Stewart, 152 Ga. 423, 110 S.E. 178 (1921); Nicholls v. Wheeler, 182 Ga. 502, 185 S.E. 800 (1936); Frost v. Dixon, 204 Ga. 268, 49 S.E.2d 664 (1948); Aiken v. Aiken, 209 Ga. 819, 76 S.E.2d 481 (1953); Dillard v. Dillard, 217 Ga. 176, 121 S.E.2d 766 (1961).

Estate in fee will not be reduced to a life estate by a subsequent limitation in a deed or will unless the intent to limit is unmistakable. Budreau v. Mingledorff, 207 Ga. 538, 63 S.E.2d 326 (1951).

- Deed providing "and sold to said D, for the support of herself, her present and future children. . . to have and to hold the same in fee simple for the purpose aforesaid" does not mention an estate less than a fee and thus conveys fee. Morris v. Davis, 75 Ga. 169 (1885).

When a deed otherwise purports to convey the fee, and contains no words such as would impose a limitation as to the quantum of the estate conveyed, a clause which does nothing more than inform the grantee that there is a prior mortgage or security deed on the property, and states that it is understood and agreed that such is the case, cannot properly be construed as cutting down the quantum of the estate sought to be conveyed. Federal Land Bank v. Bank of Lenox, 192 Ga. 543, 16 S.E.2d 9 (1941).

- When by codicil to a will an absolute estate is given, without any referential words carrying back the bequest, under limitations in previous provisions, courts cannot supply such intent by construction. If the devise is complete, separate, and unequivocal, the law inhibits the construction of lesser estates when no words of limitation are employed by the testator. Felton v. Hill, 41 Ga. 554 (1871).

Devise conveying property to X "without limitation or reserve, for her to do as she thinks best for herself and all my lawful heirs," conveys a fee. Wood v. Owen, 133 Ga. 751, 66 S.E. 951 (1910).

Language, "It is my will that one-half of my property. . . shall belong to my wife in fee simple," created a fee simple estate. The words that follow those in the will, "and to be disposed of by her at her death as she may think proper," did not diminish the quantity of interest which the devisee took in the property, and was not a limitation creating a less estate than that which the words first quoted import. Lane v. Malcolm, 141 Ga. 424, 81 S.E. 125 (1914).

When, under a joint will of a husband and wife, the survivor is expressly devised a fee simple estate in the property of the testator first dying, and following such a devise are the words, "to be used and owned fully in any way such survivor may desire," these words are clearly not a limitation upon the fee and do not show an intention of the testator to reduce the estate of the survivor from a fee simple to a life estate. Callaway v. Faust, 212 Ga. 596, 94 S.E.2d 379 (1956).

- When a lesser estate than a fee is expressly limited, the court is bound to give effect to the manifest intention of the testator. Nussbaun & Dannenberg v. Evans, 71 Ga. 753 (1883).

When a testator gives an absolute estate in one part of the testator's will, and by a subsequent clause expressly cuts down such absolute estate to a lesser estate, the prior gift is restricted accordingly. Budreau v. Mingledorff, 207 Ga. 538, 63 S.E.2d 326 (1951).

Intent of the parties is of prime importance in conveyancing. Parker v. Smith, 140 Ga. 789, 80 S.E. 12 (1913); Burch v. King, 14 Ga. App. 153, 80 S.E. 664 (1914); DOT v. Knight, 238 Ga. 225, 232 S.E.2d 72 (1977).

Terms of the whole instrument are to be construed together to give effect to the entire deed and to uphold the intention of the grantor. Cole v. Thrasher, 246 Ga. 683, 272 S.E.2d 696 (1980).

All technical rules must be disregarded so as to give effect to the intention of the maker of the instrument if the intention can be gathered from its contents. Burch v. King, 14 Ga. App. 153, 80 S.E. 664 (1914); Banks v. Morgan, 163 Ga. 468, 136 S.E. 434 (1927).

- If the expression relied upon to limit the fee is doubtful, the doubt should be resolved in favor of the absolute estate. Nicholls v. Wheeler, 182 Ga. 502, 185 S.E. 800 (1936), overruled on other grounds, Bailey v. Johnson, 245 Ga. 823, 268 S.E.2d 147 (1980); Aiken v. Aiken, 209 Ga. 819, 76 S.E.2d 481 (1953); Dillard v. Dillard, 217 Ga. 176, 121 S.E.2d 766 (1961).

Law favors the vesting of estates at the earliest possible period. Bailey v. Ross, 66 Ga. 274 (1881); Sumpter v. Carter, 115 Ga. 893, 42 S.E. 324, 60 L.R.A. 274 (1902); Perdue v. Anderson, 142 Ga. 309, 82 S.E. 884 (1914); Patterson v. Patterson, 147 Ga. 44, 92 S.E. 882 (1917).

- Trial court erred in declaring that a deed conveyed a joint tenancy to a decedent and widow because the trial court construed the deed in a manner contrary to the deed's terms, ignoring the provision granting the decedent's widow a tenancy in common for their joint lives; instead, the deed should have been construed to convey first a life estate and then an estate in remainder so as to give effect to all of the deed's provisions. Greene v. Greene, 311 Ga. App. 132, 714 S.E.2d 650 (2011).

Cited in Harris v. Smith, 16 Ga. 545 (1855); Hill v. Alford, 46 Ga. 247 (1872); Gibson v. Hardaway, 68 Ga. 370 (1882); Wetter v. United Hydraulic Cotton Press Co., 75 Ga. 540 (1885); Craig v. Ambrose, 80 Ga. 134, 4 S.E. 1 (1887); Matthews v. Hudson, 81 Ga. 120, 7 S.E. 286, 12 Am. St. R. 305 (1888); Chewning v. Shumate, 106 Ga. 751, 32 S.E. 544 (1889); McDonough & Co. v. Martin, 88 Ga. 675, 16 S.E. 59, 18 L.R.A. 343 (1892); McCord v. Whitehead, 98 Ga. 381, 25 S.E. 767 (1896); Terrell v. Huff, 108 Ga. 655, 34 S.E. 345 (1899); Davis v. Hollingsworth, 113 Ga. 210, 38 S.E. 827, 84 Am. St. R. 233 (1901); Sumpter v. Carter, 115 Ga. 893, 42 S.E. 324, 60 L.R.A. 274 (1902); Hill v. Terrell, 123 Ga. 49, 51 S.E. 81 (1905); Stamey v. McGinnis, 145 Ga. 226, 88 S.E. 935 (1916); Megahee v. Hatcher, 146 Ga. 498, 91 S.E. 677 (1917); Hollomon v. Board of Educ., 168 Ga. 359, 147 S.E. 882 (1929); Lumpkin v. Patterson, 170 Ga. 94, 152 S.E. 448 (1930); Woods v. Flanders, 180 Ga. 835, 181 S.E. 83 (1935); McArthur v. Bone, 183 Ga. 796, 189 S.E. 831 (1937); Watts v. Finley, 187 Ga. 629, 1 S.E.2d 723 (1939); Palmer v. Atwood, 188 Ga. 99, 3 S.E.2d 63 (1939); Sanders v. First Nat'l Bank, 189 Ga. 450, 6 S.E.2d 294 (1939); Walden v. Walden, 191 Ga. 182, 12 S.E.2d 345 (1940); Bienvenu v. First Nat'l Bank, 193 Ga. 101, 17 S.E.2d 257 (1941); Trimble v. Fairbanks, 209 Ga. 741, 76 S.E.2d 16 (1953); Wright v. Pritchett, 213 Ga. 865, 102 S.E.2d 602 (1958); Stephens v. Stephens, 218 Ga. 671, 130 S.E.2d 208 (1963); White v. Howell, 117 Ga. App. 778, 161 S.E.2d 892 (1968); Floyd v. Hoover, 141 Ga. App. 588, 234 S.E.2d 89 (1977); LeBlanc v. Easterwood, 242 Ga. 99, 249 S.E.2d 567 (1978); O'Neill v. Myers, 148 Ga. App. 749, 252 S.E.2d 638 (1979); Tucker v. Black, 253 Ga. 46, 315 S.E.2d 910 (1984); Bandy v. Henderson, 284 Ga. 692, 670 S.E.2d 792 (2008).

Rules of Construction

Conveyances at common law.

- By the common law, the word "heirs" is necessary to be employed in a grant, in order to pass an inheritable fee; but, under statutory law, words of restraint must be added in order to carry a less estate. Cook v. Walker, 15 Ga. 457 (1854).

Conveyance "to A" would have, by the English rules of construction, only conveyed a life estate. The Georgia rule, however, is to the contrary. Raines v. Duskin, 247 Ga. 512, 277 S.E.2d 26 (1981).

- Conveyance to a person is a conveyance to the person, the person's heirs, and assigns, and a conveyance to a corporation is one to the corporation and the corporation's successors and assigns. Florida Blue Ridge Corp. v. Tennessee Elec. Power Co., 106 F.2d 913 (5th Cir. 1939), cert. denied, 309 U.S. 666, 60 S. Ct. 591, 84 L. Ed. 1013 (1940).

Court would not construe an agreement and a deed together as creating a fee simple subject to a condition subsequent because a month-long gap between the execution of the agreement and the deed was too great of a gap in time to deem the documents as being executed contemporaneously. Nor would the court reform the documents to do so as the creditor failed to demonstrate a mistake of present or past fact relievable in equity, either by rescission or reformation. Kelley v. McCormack (In re Mitchell), 548 Bankr. 862 (Bankr. M.D. Ga. 2016).

Devise or a grant to A and A's heirs conveys a fee to A. Craig v. Ambrose, 80 Ga. 134, 4 S.E. 1 (1887); Ewing v. Shropshire, 80 Ga. 374, 7 S.E. 554 (1888); Douglas v. Johnson, 130 Ga. 472, 60 S.E. 1041 (1908); Thomas v. Owens, 131 Ga. 248, 62 S.E. 218 (1908); Ragan v. Rogers, 146 Ga. 818, 92 S.E. 647 (1917).

- This statute, which requires that technical rules be disregarded, is an obstacle to any possible application of the Rule in Shelley's Case to a conveyance with the remainder limited to heirs, lineal heirs, lawful heirs, issue, or the like, and inhibits the enlargement of the estate granted to A into a fee by construction, a less estate, to wit, one for life, being mentioned and limited. Ewing v. Shropshire, 80 Ga. 374, 7 S.E. 554 (1888) (see O.C.G.A. § 44-6-21).

Conveyance "to B for life, remainder to his heirs" gave B a fee simple estate at common law, by the Rule in Shelley's Case. The Rule in Shelley's Case is not followed in Georgia. Raines v. Duskin, 247 Ga. 512, 277 S.E.2d 26 (1981).

Defeasible fee with an executory limitation is created when a testator devises real estate to two persons in fee simple, but provides that upon the death of one of the people the property shall vest in fee simple in the survivor. Trimble v. Fairbanks, 209 Ga. 741, 76 S.E.2d 16 (1953).

- Annexing of a limitation over to an estate otherwise made a fee would not reduce such estate to an estate tail, inasmuch as such condition would not have reduced it to an estate tail at common law. The estate is a fee determinable upon condition. Burton v. Black, 30 Ga. 638 (1860).

- If A was given a life estate with absolute right of disposition, and A exercised the right by executing a quitclaim, the estate A conveyed was presumed a fee simple in the absence of a less estate being limited. Prudential Inv. & Dev. Co. v. Hilton, 153 Ga. 415, 112 S.E. 464 (1922).

- Deed providing that the estate shall be used only for specified purposes conveys an absolute unconditional fee. If, by its terms, this covenant had created a forfeiture upon condition broken, the court ought to construe it to prevent that result. Doe v. Roe, 39 Ga. 202 (1869).

An estate to X as long as X shall remain satisfied thereon, to revert in case X is not satisfied conveys a fee making it X's duty to elect to become satisfied within a reasonable time. Crumpler v. Barfield & Wilson Co., 114 Ga. 570, 40 S.E. 808 (1902).

When a deed contains no words of forfeiture, but does contain a stipulation that the property would be used to terminate a railroad line and for the building of offices, such stipulation in the deed is a covenant and not a forfeiture which would cause title to the property to revert to the grantor upon abandonment of the property for the purposes stipulated in the deed. Richmond County Property Owners Ass'n v. Augusta-Richmond County Coliseum Auth., 233 Ga. 94, 210 S.E.2d 172 (1974).

- Use of the words "forever, in fee simple" in a security deed were not an "affirmative statement" within the meaning of O.C.G.A. § 44-14-80(a)(2) such that title to the property did not revert to the grantor for 20 years, rather than seven years, because those words related to the estate granted rather than the duration of the security interest. Parol evidence was not admissible and § 44-14-80 controlled over O.C.G.A. § 44-6-21. Vineville Capital Group, LLC v. McCook, 329 Ga. App. 790, 766 S.E.2d 156 (2014).