August 2, 2011
Authored by: Luke Lantta
In Greene v. Greene, the Georgia Court of Appeals considered the effect of a deed that provided that an executrix and her husband took real property “as tenants in common, for and during their joint lives, and, upon the death of either of them, then to the survivor of them, in fee simple, together with every contingent remainder and right of reversion, and to the heirs and assigns of said survivor.” The trial court had determined that the deed conveyed to the executrix and her husband a joint tenancy with a right of survivorship and, the husband having died, further determined that the executrix was the “sole owner” of the property. The Court of Appeals affirmed in part and reversed in part.
The Court of Appeals agreed with the trial court that the executrix was now the sole owner of the property, but disagreed on what, precisely, the language in the deed accomplished. The Court of Appeals determined that the language in the deed actually conveyed to the executrix and her husband a life estate in the property as tenants in common and that life estate terminated upon the death of either of them. In reaching this decision, the Court rejected two challenges from the husband’s heir.
First, the heir claimed that O.C.G.A. § 44-6-190, which concerns conveyances to two or more persons, applied. The Court rejected this challenge because, while the deed conveyed the life estate to two persons as tenants in common, the deed conveyed the estate in remainder to one person, rather than two.
Second, the heir claimed that in the husband’s will, the husband allegedly attempted to devise his interest in the property to his heirs and, thus, the will somehow superseded the deed. The Court rejected this challenge because no interest in the property passed to the husband’s estate when he died and, therefore, there was no property to devise under the will.