November 21, 2013
Authored by: Luke Lantta
When conveying property, why do the words in a deed – especially when they deal with remainder interests – sometimes end up causing us so much trouble? Occasionally, it’s a product of a different time and different statutes. In Wilkes v. Fraser, the Georgia Court of Appeals was tasked with a particularly cumbersome bit of language in a deed, which was only made more difficult by the passage of time and the passage of people. Anytime an appellate court attaches a chart of familial relationships to its opinion, you know it’s going to get rough.
Under the terms of the deed at issue, D.W. Wilkes (“D.W.”) “reserve[d] unto himself the management, control, profits, use and possession of [a certain parcel of land] and at his death to [his son, Ralph Wilkes (“Ralph”),] during his life and at his death to his children.” Easy enough – simple life estate in D.W., second life estate in Ralph, remainder to grandchildren by Ralph.
But what would happen if Ralph didn’t have any children? The deed provided that “[s]hould the said Ralph Wilkes die without issue in that event the lands shall go to my other living children or their children.” As you might imagine, Ralph died without children. But, before we can get to who got the property, we must first dive into those familial relations.
When D.W. died, he was survived by five children: Ralph, Earl, Georgia, Davie Lee, and Nell. At the time of D.W.’s death, none of his children had any children. Ralph and Earl would ultimately die without issue, while Georgia, Davie Lee, and Nell would all ultimately have at least one child each.
But, at the time of Ralph’s death, Nell was the only one of D.W.’s “other. . . children” living. Davie Lee’s son, James David Wilkes (“Wilkes”), was the only other of Ralph’s surviving lineal descendants. Ricky Louie Dixon (“Dixon”), who was Georgia’s son, survived Georgia but predeceased Ralph. The question was: did Dixon’s estate take any interest under the deed?
Wilkes, who was also the executor of Dixon’s estate, argued that Wilkes, Nell, and Dixon’s estate each took a 1/3 interest in the property based on the argument that the provision referred to D.W.’s children living at the time the deed was executed, without any requirement that such children also survive Ralph. Because Dixon’s mother was one of those children, Wilkes argued that she received a remainder, which, by law, passed to Dixon at his mother’s death.
Nell, however, argued that she and Wilkes each held a 1/2 interest in the property based on an argument that the deed provided that the remainder of the estate would pass only to D.W.’s children and grandchildren who were alive when Ralph died without issue.
The trial court determined that Nell was right, but the appellate court reversed finding that Wilkes was right.
Here’s the part where we get to talk about alternate remainders, contingent remainders, and vested remainders subject to divestment. Because Ralph had no children when the deed was signed, the language in the deed that granted an interest to Ralph’s children upon his death created a contingent remainder insofar as it was a remainder limited as to uncertain persons. The deed also granted to D.W.’s “other living children or their children” an alternate remainder, which was limited to Ralph’s dying without issue. The two alternate remainders created by this provision were (1) a vested remainder in D.W.’s other children, subject to divestment if Ralph had children or (2) another type of contingent remainder insofar as it was a remainder limited to an event which may or may not happen.
Now, here’s the part where we get to talk about 1933 Georgia laws that were repealed in 1994. When D.W. executed the deed in 1936, the then-existing Georgia statute provided that “[i]f the remainderman shall die before the time arrives for possessing his estate in remainder, his heirs shall be entitled to a vested-remainder interest, and to a contingent-remainder interest when the contingency is not as to the person but as to the event. If the contingency shall be as to the person, and that person shall not be in esse at the time when the contingency happens, his heirs shall not be entitled.” What all this means is that “if remaindermen . . . shall die before the antecedent estate shall terminate and the time arrives for possessing the estate in remainder, the heirs or assigns of such deceased remainderman, if they take at all, will take by inheritance . . . .”
Another 1933 statute then specifically provided that “[a] future interest or estate may be conveyed by deed; but it must operate to transfer the title immediately, or the instrument will be testamentary and revocable.” Therefore, the phrase “other living children” necessarily referred to D.W.’s other living children on the date he executed the deed: May 23, 1936.
Moreover, the use of the phrase “living children” was to be interpreted as reflecting D.W.’s intent that no afterborn children would have an interest in the property. The addition of the phrase “or their children” should be interpreted as a limitation on the rule that should any of D.W.’s other children predecease Ralph, their estate would go to their heirs. The deed’s language reflects an intent that only the children of D.W.’s other children, and no other heirs, would receive a remainder, should one of D.W.’s other children predecease Ralph.
So what additional language would have been required to support Nell’s interpretation? Instead of reading “other living children and their children,” the deed would have had to provide “other living children or their living children.”
To summarize, as the Court of Appeals did: “other living children” referred to Georgia, Nell, Davie Lee, and Earl. The phrase “their children” referred to the children of those four individuals. Earl died before Ralph and left no children. Georgia and Davie Lee also predeceased Ralph, but left children. Their children, Dixon and Wilkes, each inherited his mother’s remainder at the time of her death. When Dixon also predeceased Ralph, his interest transferred to his heirs under the old 1933 statute, under the terms of his will, or pursuant to another document transferring title.