Schriber v. Anderson , 205 Ga. 343 ( 1949 )

1. "The presumption that one who makes a will intends to dispose of all his property and not die intestate as to any part of his estate is overcome only when a contrary intention is plain and unambiguous, or necessarily implied." Armstrong v. Merts, 202 Ga. 483 (4) (43 S.E.2d 512).

2. The provision of the will of the testatrix, that "the remaining assets of my estate of whatever kind and nature . . I hereby give, bequeath and devise to my stepson, Willie Witte," upon the death of the testatrix conveyed a vested remainder interest to Willie Witte in the residue of the estate. Code, § 85-703.

3. A will takes effect upon the death of the maker. One who is named as the beneficiary of a life estate may also take a remainder interest. The fact that the life tenant could not enjoy the estate in remainder, because the remainder interest would not be distributed until the death of the life tenant, does not prevent a vested title in the remainder interest, which might be sold and conveyed by the remainderman, or devised to, or be inherited by, his heirs, who would take a vested remainder interest. Payne v. Brown, 164 Ga. 175 (137 S.E. 921); Lumpkin v. Patterson, 170 Ga. 94 (152 S.E. 448).

4. The trial court properly ruled that the estate in remainder passed to Willie Witte upon the death of Mrs. Kate Witte, and that Mrs. Florence Witte, as administratrix of the estate of her husband, Willie Witte, was the proper person to whom the residue of the estate should be delivered.

Judgment affirmed. All the Justices concur.

No. 16613. MAY 12, 1949. Mrs. Kate Witte died February 23, 1947. Her will was probated in solemn form. The executor filed a petition for construction and direction as to the distribution of the estate. Claimants of the estate are Charles H. Schriber, a brother of the testatrix, and Mrs. Florence Witte, administratrix of the estate of Willie Witte, a stepson of the testatrix. Willie Witte died approximately two months after the testatrix. The executor's petition shows that certain special bequests have been paid. Monthly payments in stated amounts, as directed by the will, to the brother and stepson of the testatrix during the life of each, have been terminated by the death of the stepson, and by the action of the brother in procuring a judgment reducing the monthly payments to him for life to their present cash value. A copy of the judgment is attached as an exhibit to the petition.

Mrs. Florence Witte filed a response, in which she contended that under item 8 of the will her deceased husband took a vested remainder interest in the residue of the estate of Mrs. Kate Witte, and she prayed that the executor be required to pay such residue over to her, as administratrix of the estate of her deceased husband.

Charles H. Schriber filed a response in which he contended: That Willie Witte could not take both a life estate (in the form of monthly payments in a stated amount) and the remainder interest in the estate, upon the termination of the monthly payments. Mrs. Kate Witte died intestate as to the residue of her estate, and the respondent, as sole heir at law of his sister, is entitled to the remainder of the estate.

By agreement of the parties the trial judge was authorized to determine all questions without the intervention of a jury. No order was entered on the demurrer of Schriber to the response of the administratrix, and error is not assigned in the bill of exceptions on any ruling on the demurrer. A judgment was rendered, wherein the contentions of Mrs. Florence Witte, that her deceased husband took a vested remainder interest in the residue of the estate, were sustained, and the executor of Mrs. Kate Witte was directed (after payment of certain items allowed as necessary expenses) to pay over the residue of the estate to the administratrix of Willie Witte. Charles H. Schriber excepts to that judgment.