2021 Georgia Code
Title 44 - Property
Chapter 5 - Acquisition and Loss of Property
Article 2 - Conveyances
§ 44-5-40. Conveyance of Future Interests or Estates
Future interests or estates are descendible, devisable, and alienable in the same manner as estates in possession. Vested interests in property stemming from the approval of land disturbance, building, construction, or other development plans, permits, or entitlements in accordance with a schedule or time frame approved or adopted by the local government shall be descendible, devisable, and alienable in the same manner as estates in possession.
(Orig. Code 1863, § 2650; Code 1868, § 2649; Code 1873, § 2691; Code 1882, § 2691; Civil Code 1895, § 3601; Civil Code 1910, § 4181; Code 1933, § 29-103; Ga. L. 1994, p. 364, § 1; Ga. L. 2008, p. 210, § 3/HB 1283; Ga. L. 2009, p. 8, § 44/SB 46.)
The 2008 amendment, effective July 1, 2008, added the last sentence.
The 2009 amendment, effective April 14, 2009, part of an Act to revise, modernize, and correct the Code, revised punctuation in the last sentence of this Code section.
Editor's notes.- Ga. L. 1994, p. 364, § 3, not codified by the General Assembly, provides: "This Act is intended to clarify and codify the law regarding the alienability of future interests."
Ga. L. 2008, p. 210, § 1, not codified by the General Assembly, provides: "(a) The General Assembly finds that the railroads and their rights of way in Georgia:
"(1) Are essential to the continued viability of this state;
"(2) Are valuable resources which must be preserved and protected;
"(3) Are essential for the economic growth and development of this state;
"(4) Provide a necessary means of transporting raw materials, agricultural products, other finished products, and consumer goods and are also essential for the safe passage of hazardous materials;
"(5) Relieve congestion on the highways and keep dangerous products and materials off our highways;
"(6) Are vital for national defense and national security; and
"(7) Provide the most energy efficient means of transportation through this state, thus minimizing air pollution and fuel consumption.
"(b) The purpose of this Act is to protect the rights of way of railroads from loss by claims of adverse possession or other claims by prescription and to recognize the dimensions of these rights of way as they were identified and defined nearly 100 years ago."
Law reviews.- For article discussing problems in construction of instrument conveying gift to a group or class, see 6 Ga. St. B.J. 169 (1969). For survey article on zoning and land use law, see 60 Mercer L. Rev. 457 (2008). For note on the 1994 amendment of this Code section, see 11 Ga. St. U.L. Rev. 243 (1994). For comment criticizing Franks v. Sparks, 217 Ga. 117, 121 S.E.2d 27 (1961), holding right of entry not alignable or assignable, see 24 Ga. B.J. 363 (1962).
JUDICIAL DECISIONS
Grantor may convey present estate by deed, although possession postponed.
- If the intention by the grantor is to convey a present estate, although possession is postponed until the death of the grantor, the instrument is a deed. Martin v. Smith, 211 Ga. 600, 87 S.E.2d 406 (1955).
When grantor retains exclusive life control over lands.
- Deed containing this reservation: "This conveyance is made with the distinct reservation by the grantor that she retains for herself an exclusive control of all of said lands as long as she may live, and to have the right to use them as her own and as she sees fit, including the working and selling of timber during the remainder of her natural life," is a warranty deed, and not a will. Martin v. Smith, 211 Ga. 600, 87 S.E.2d 406 (1955).
Title to bare possibility of future interest cannot be transferred immediately.
- Bare possibility of future inheritance from a living person is not a "future interest or estate," the title to which can be transferred immediately. Harper v. Harper, 241 Ga. 19, 243 S.E.2d 74 (1978).
Contingency or possibility cannot be sold, unless present right to future benefit.
- Future interest may be conveyed by deed. However, a bare contingency or possibility may not be the subject of sale, unless there shall exist a present right in the person selling to a future benefit. Shockley v. Storey, 185 Ga. 790, 196 S.E. 702 (1938).
Possibility of reverter assignable.
- Under a will which gave lands to a certain devisee but contained a provision that, if the devisee died without issue, the land should revert to the testator's estate, the heirs at law of the testator took such a contingent estate therein as was assignable during the lifetime of the devisee. Shockley v. Storey, 185 Ga. 790, 196 S.E. 702 (1938).
Remainder may be assigned or conveyed.
- Remainder is an estate in land, and whether vested or contingent, may be freely assigned and conveyed. Darnell v. Holtzclaw, 260 Ga. 891, 401 S.E.2d 521 (1991).
Vested remainder is a present estate; only the possession is postponed. Darnell v. Holtzclaw, 260 Ga. 891, 401 S.E.2d 521 (1991).
Vested remainder found.
- 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).
Contingent remainder to certain person transmissible.
- Descendible interest is created in a contingent remainder when the person or persons to take are certain, but the gift is contingent upon the happening of a certain event, and an interest that is descendible is usually otherwise transmissible. Raney v. Smith, 242 Ga. 809, 251 S.E.2d 554 (1979).
Power to appoint remainderman by will cannot be exercised by deed.
- When a deed granted a life estate and at the same time conferred upon the grantee power to appoint by will the person or persons to take in the remainder, the appointment could be made by will only, and an attempt to exercise the power by a deed was ineffectual, and a grantee under the deed had no interest which the grantee could convey to another in virtue of the appointment attempted in the deed. Newton v. Bullard, 181 Ga. 448, 182 S.E. 614 (1935).
Deed to person not in esse.
- Deed to immediate estate in land to a person not in esse is absolutely void. Bank of Graymont v. Kingery, 170 Ga. 771, 154 S.E. 355 (1930).
Cited in Lufburrow v. Koch, 75 Ga. 448 (1885); West v. Anderson, 187 Ga. 587, 1 S.E.2d 671 (1939); Yancey v. Grafton, 197 Ga. 117, 27 S.E.2d 857 (1943); Chance v. Buxton, 177 F.2d 297 (5th Cir. 1949); Seymour v. Presley, 239 Ga. 572, 238 S.E.2d 347 (1977); Chattahoochee Holdings, Inc. v. Marshall, 146 Ga. App. 658, 247 S.E.2d 167 (1978); Henderson v. Collins, 245 Ga. 776, 267 S.E.2d 202 (1980).
RESEARCH REFERENCES
Am. Jur. 2d.
- 23 Am. Jur. 2d, Deeds, § 211 et seq.
C.J.S.- 26A C.J.S., Deeds, §§ 25, 26.
ALR.
- Quantum of estate passing to grantee as affected by language in deed purporting to express his intention that property is to third person upon his death, 52 A.L.R. 540.
Delivery of deed to third person to be delivered to grantee after grantor's death, 52 A.L.R. 1222.
Fee simple conditional, 114 A.L.R. 602.
Effect on validity and character of instrument in form of deed of provisions therein indicating an intention to postpone or limit the rights of grantee until after the death of grantor, 31 A.L.R.2d 532.
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.
Validity and effect of provision in deed attempting to make reservation or exception in favor of grantor's spouse, 52 A.L.R.3d 753.
