Brief Fact Summary. Appellants, the grandchildren and daughter-in-law (Appellants) of Testator Watson Usry (Testator), claim that a remainder interest in Testator’s will vested on the last life tenant’s death, while the grandchildren (Appellees) claim that the remainder vested instead on Testator’s death. Appellants appeal the lower court summary judgment grant for Appellees.
Synopsis of Rule of Law. In construction of a will provision, vested remainders prevail over contingent remainders.
Issue. In construction of a will, do vested remainders prevail over contingent remainders?
Held. Yes. The construction of a will provision to make it read as a vested remainder rather than a contingent remainder prevails over the construction of that will that yields a contingent remainder. Testator’s will stated that it was his intention to provide for the welfare of his loved ones who survived him. Wills must be construed in whole. Because of this principle, the will must be read in light of the provision regarding care of the Testator’s loved ones. This is fatal to the claim that the remainder interest did not vest until the death of the last life tenant. Under Georgia state law, vesting at the death of Testator is favored. Therefore, any provision that could be construed to make a remainder interest contingent upon surviving a life tenant to whom the interest is bequeathed must be clear and unambiguous. The provision of the will that allegedly bests the remainder at the conclusion of the life estates is not clear and unambiguous. If the will could be construed to provi
de both a contingent and a vested remainder, the vested remainder prevailed. Therefore the lower court’s ruling is affirmed.
Dissent. Because the language of the Testator’s will is clear and unambiguous, the principle regarding early vesting or vesting on the death of Testator is inapplicable. Therefore, the contingent remainder should be allowed to stand as the proper interpretation of the will. Because of this, I dissent.
Discussion. Ambiguities arise in determining when class gifts vest and the class closes. When gifts are given to a single generation, ambiguities can arise when some members of the class die before their interest becomes possessory. Careful drafting can avoid this ambiguity.