## Facts

- Elizabeth Shorter died in 1929 and created a testamentary trust for her son.
- The will provided that if the son died without descendants but with a surviving पत्नी, the trustee would pay the net income to the wife for life, and upon the wife’s death convey the trust corpus in fee simple to the children and descendants of children of Shorter’s brother and sister.
- The son married Mildred Shorter in 1953.
- The son died in 1987, survived by Mildred and leaving no descendants.
- A trustee bank petitioned for construction of the will and determination of the validity of the trust provision.
- The trial court held the remainder to the siblings’ descendants violated Georgia’s rule against perpetuities, terminated the trust, and vested fee simple title in the son’s heir (Mildred).

## Issues

1. Whether the will’s remainder to the testatrix’s siblings’ descendants, following life interests in the son and his widow, violated Georgia’s rule against perpetuities under OCGA § 44-6-1.
2. Whether Georgia should replace the traditional rule against perpetuities with a judicially adopted “wait and see” approach.

## Decision

- The Supreme Court of Georgia held the remote remainder violated OCGA § 44-6-1 and was void to the extent it created an interest that could vest beyond lives in being plus 21 years (and gestation).
- Applying the statute’s severance directive, the court gave effect to valid limitations and voided only the impermissibly remote limitation, vesting the fee in the “last taker” under the valid limitations (the son).
- Because the son was the last valid taker, his heir (Mildred) took the property in fee simple, consistent with the trial court’s decree.
- The court declined to adopt the “wait and see” doctrine, noting that states using it had done so by legislation and that the traditional rule better served certainty and early vesting.

## Legal Principles

- Under OCGA § 44-6-1, limitations of estates may extend through lives in being at commencement plus 21 years and gestation; a limitation beyond that period is a forbidden perpetuity.
- When an instrument attempts to create a perpetuity, Georgia courts enforce the limitations that are not too remote, declare the remote limitations void, and vest the fee in the last taker under the valid limitations.
- Georgia applies the traditional rule against perpetuities as a prospective, certainty-based test, and will not adopt a “wait and see” approach absent legislative action.

## Conclusion

The court enforced Georgia’s statutory rule against perpetuities by invalidating a remainder that could vest too remotely, vesting the fee in the last valid taker and thereby awarding fee simple ownership to the son’s heir, while also rejecting judicial adoption of “wait and see” in favor of the traditional rule.


Pound v. Shorter, 259 Ga. 148, 377 S.E.2d 854 (Ga. 1989)