2020 Georgia Code
Title 44 - Property
Chapter 6 - Estates
Article 2 - Fee Simple Estates
§ 44-6-25. Construction and Effect of Limitations Over After Death of First Taker

All limitations over after the death of the first taker, upon his "dying without heirs," "dying without issue," "dying without leaving heirs or issue," "on failure of issue," or other and equivalent terms, shall be construed to mean a failure of heirs or issue at the time of the death of the first taker and shall convey the estate in the manner prescribed in Code Section 44-6-24.

(Ga. L. 1853-54, p. 72, § 1; Code 1863, § 2231; Code 1868, § 2225; Code 1873, § 2251; Code 1882, § 2251; Civil Code 1895, § 3086; Civil Code 1910, § 3662; Code 1933, § 85-506.)

- 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).

- 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).

- 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 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 obtained, 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).

- 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).

- 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).

- "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).

- 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, 100 S.E. 371 (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).

- 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).