Overby v. Scarborough

Beck, J.

(After stating the foregoing facts.) The estate granted is to J. T. Duncan in trust for his "wife Elizabeth for life, and on her decease to J. T. Duncan in trust for any future wife he may have, and on her decease to all of the children of J. T. Duncan. The present estate created by the deed is a life-estate in Elizabeth, with a remainder over to any future wife for life of J. T. Duncan, and further remainder on the death of the latter to all of the children of J. T. Duncan. The question is the proper construction of this déed, and particularly whether it violates the rule against perpetuities. The code declares that “Limitations of estates may extend through any number of lives in being at the time when the limitations commence, and twenty-one years,'and the usual period of gestation added thereafter. A limitation beyond that period the law terms a perpetuity, and forbids its creation. When an attempt is made to create a perpetuity, the law gives effect to limitations not too remote, declaring the others void, and thereby vests the fee in the last taker under the legal limitations.” Civil Code (1910), § 3678. Whether a limitation over is to be regarded as a perpetuity or not depends upon the time within which such limitation must take effect. “It is not enough that a' contingent event may happen, or even that it will probably happen, within the limits of the rule against perpetuities; if it can possibly happen beyond those limits, an interest conditioned on it is too remote.” Gray’s Buie against Perpetuities, § 214; O’Byrne v. Feeley, 61 Ga. 77, 83 . The first limitation over on the death of Elizabeth Duncan is to J. T. Duncan in trust for any future wife which he may have, which estate was to determine at her death. Upon the death of his wife Elizabeth, J. T. Duncan could not have another wife in which the estate was to vest, because J. T. Duncan could not legally marry until his wife Elizabeth died, if the marital tie had not been dissolved. Even if Elizabeth had been divorced, and J. T. Duncan had contracted another marriage in the lifetime of his wife Elizabeth, still that contingency would not be one which must necessarily happen in the lifetime of Elizabeth, and in fact did not happen. The deed did not create in any future wife of J. T. Duncan an estate which vested in such future wife during the life of his wife Elizabeth. Indeed the limitation over to any future wife vested upon the contingency of J. T. Duncan marrying, which was uncertain both as *879 to the event and to the person. 'No man conld say, at the time the deed was executed, that J. T. Duncan necessarily would marry within twenty-two years after the death of his wife Elizabeth, or that the person whom he would marry was in life. He may have been quite a young man when his wife Elizabeth died, and may have remained a widower for thirty or more years before contracting another marriage, and may have married a person who was not in life when the deed was made. Hence it is clear that as the contingency of one or more subsequent marriages might happen more than twenty-one years and the usual period of gestation after the death of the first taker, the limitation to the second life-tenant was void for remoteness. It was early held that where property is devised to A for life, remainder to his widow for life, remainder over on the death of the widow, the ultimate remainder on the death of the widow, if contingent until that event, is bad, because A may marry a woman who was not born at the testator’s death; and the result is not affected by the fact that A is very old at the testator’s death. Hodson v. Ball, 14 Sim. 558, 574; Gray’s Rule against Perpetuities, § 214.

The grantor made it clear that not some, but all of the children of J. Tl Duncan, upon the death of any future wife of J. T. Duncan, were to take in remainder as a class. J. T. Duncan had a child by a prior marriage before his marriage with his wife Elizabeth, the lifetenant in the deed, who was in life when the deed was executed. There was born to him by his wife Elizabeth one child, who was in life when the deed was made, but who predeceased him. There were also born unto him two children by the wife of a third and last marriage, who are now in life. The question now arises, whether the remainder to the children of J. T. Duncan is void for remoteness. At common law every remainder expectant upon a prior remainder, which was void for remoteness, was also too remote. Lewis on Law of Perpetuity, § 421. The objection of remoteness which attaches to the remainder to a future wife for life, as affecting the ultimate remainder in fee to the children of J. T. Duncan, is good or not, according as the remainder to them is construed as vested or contingent. If the remainder be construed as vested as to children in life when the deed was executed, subject to open and let in after-born children, then the limitation would be good. On the other hand, if the remainder *880 be construed as limited to tbe children of J. T. Duncan at the time of the death of a wife by a future marriage, it would be contingent and too remote. Gray’s Eule against Perpetuities, A for life, with remainder to A’s children on the death of A, § 207a. In this State, since the adoption of the code, by grant to children of A in esse when the deed was executed take a vested estate in remainder, subject to be opened to let in after-born children. Milner v. Gay, ante, 858. Two of the children were in life when the deed was executed, two were subsequently born, and all would take vested remainders under this rule. Under the deed the remainder to the children was to become an estate in possession upon the falling in of the estate for life of the last wife of J. T. Duncan. But, as we have pointed out, that estate is void for remoteness. The code section (3678) declares that when an attempt is made to create a perpetuity, the law gives effect to the limitations not too remote, declaring the others void. The result of the application of this principle is to vest in possession the ultimate remainder of the children upon the death of the first life-tenant, Elizabeth Duncan.

Elizabeth Duncan died in 1875, leaving a daughter Jennie, who intermarried with one Overby, and died in the year 1900, leaving the plaintiffs as her heirs at law. Mrs. Jennie Overby’s estate in remainder became an estate in possession on the death of her mother in 1875. When her father sold as trustee in 1877 she had a vested legal remainder, over which the judge of the superior court had no jurisdiction to decree a sale on application of her father as trustee, without notice to her. Her right of action was complete when the purchaser from the trustee entered into possession in December, 1877. The date of Mrs. Overby’s birth does not appear, but she was of age at least in the spring of 1896. She died in 1900; and tolling her estate for five years as an unrepresented estate (Civil Code, § 4175), the purchaser’s title by prescription ripened under the deed from the trustee before the bringing of the suit by her heirs in the year 1915.

Judgment affirmed.

All the Justices concur, except Gilbert J., not presiding.