## Facts

- A testator died in 1960 leaving a will that granted his mentally handicapped youngest child (Alma) a life estate in all his property.
- The will provided that, upon Alma’s death, the property would pass to the testator’s child or children who took Alma into their home and provided her necessities of life.
- The will further provided that if none of the testator’s children provided such care, the property would pass to the person who did care for Alma even if an outsider.
- Alma lived with her sister Lillian Rowell from 1960 to 1973, during which Lillian housed and cared for her.
- From 1973 to 1994 Alma lived with Mitchell Folsom (a daughter-in-law of the testator), and after a 1994 stroke Alma lived with the testator’s granddaughter Linda Smith until Alma’s death in 2001; Smith and Mitchell provided care.
- Certain grandsons performed maintenance and repairs for Alma but did not live with her or provide personal care.
- Lillian Rowell and Mitchell Folsom both died before Alma; after Alma’s death, competing claimants asserted rights to the remainder.
- In proceedings to construe the will, the superior court held that only the Rowell heirs (Lillian’s children) could take under the remainder clause and rejected claims by Smith and by the grandsons.

## Issues

1. Whether the will’s remainder to the child or children who cared for Alma created a contingent remainder that vested upon performance, and whether a vested remainder could pass to the remainderman’s heirs despite the remainderman predeceasing the life tenant.
2. Whether the alternative gift to an “outsider” caregiver could operate after a testator’s child had already satisfied the care condition.
3. Whether grandchildren could qualify as “children” under the will absent a clear expression of intent.

## Decision

- The Supreme Court of Georgia affirmed the superior court.
- Lillian Rowell acquired a remainder that vested when she took Alma into her home and provided the specified care; the will did not require Lillian to survive Alma.
- Because the remainder vested in Lillian, her vested interest was inheritable and passed to her heirs, who became entitled to possession upon Alma’s death.
- The outsider-caregiver clause did not apply because at least one of the testator’s children (Lillian) provided the required care.
- Grandchildren and other descendants could not take as “children” under the will’s language absent contrary intent; thus Smith and the grandsons could not take directly under the remainder clause.

## Legal Principles

- A will is construed under the law in effect at the testator’s death.
- A remainder subject to a condition precedent may be contingent initially but becomes vested upon satisfaction of the condition.
- A vested remainder is descendible and may pass to the vested remainderman’s heirs even if the remainderman dies before the life tenant.
- An alternative gift conditioned on “none of my children” providing care does not take effect once a child has performed the care condition.
- “Children” in a will does not include grandchildren absent language showing that intent.

## Conclusion

The court held that the remainder vested in the sister who first satisfied the will’s care condition, making the interest inheritable by her heirs upon her death, and foreclosing later claims by non-child caregivers and grandchildren under both the outsider clause and the term “children.”


Folsom v. Rowell, 281 Ga. 494, 640 S.E.2d 5 (Ga. 2007)