Usry died. His will provided
successive life estates to his will Lucille and then their children. The
remainder was to be distributed to his grandchildren.
Usry had three children, who
produced a total of four grandchildren.
Usry's son Jack died
leaving three kids and a wife.
Usry's fourth grandson,
Hoyt, had three children of his own prior to Usry's death, but died
before Jack.
Usry's son Ned had no
children and was the last to die.
Therefore, at the time of
Usry's death, there were four living grandkids and three great-grandkids.
At the time of Usry's last living child's death (Ned), there were three
living grandkids and three living great-grandkids.
Jack's children argued that
the distribution should occur based on who was alive when Ned died, and
since Hoyt was already dead, his heirs shouldn't get a share.
In other words, Hoyt's gift
had not vested.
Hoyt's kids argued that the
distribution should occur based on who was alive when Usry died, which
meant that Hoyt got a share (which goes to them.)
In other words, vesting should apply.
The Trial Court found for
Hoyt's kids. Jack's kids appealed.
The Georgia Supreme Court
affirmed.
The Georgia Supreme Court
looked to Usry's intent. They
found that he stated an intention to provide for those "who survive
me." Therefore, since Hoyt survived Usry, he (or his estate) is
entitled to a share.
Also, Georgia State law
favors the vesting of title at the time of the testator's death, unless there is manifest intention to
the contrary.
In a dissent, it was argued
the will had a clause saying, "upon the death of my last surviving
child title in fee simple to said lands will vest in my grandchildren."
Therefore, there was manifest intent for the vesting of title to occur at
the death of the last surviving child.
That's a condition of
survivorship. If there is a condition of survivorship then the gift
doesn't vest until the condition is met.
