## Facts

- A testator died in 1970 leaving a will that created two trusts for his wife as life beneficiary, with remainder interests to the couple’s nine named children in specified shares.
- The trust provisions also addressed a child’s death before the life beneficiary, providing for substitution to the deceased child’s surviving children.
- One named child (Bennie) died before the life beneficiary, leaving no children but leaving a will naming his wife (Peggy) as sole beneficiary.
- After the life beneficiary died and the life estates ended, litigation was filed to determine who owned Bennie’s remainder share.
- The trial court granted summary judgment against Peggy, concluding she did not inherit Bennie’s remainder interests; Peggy appealed.

## Issues

1. Whether Bennie’s remainder interests were vested at the time the will took effect or contingent on his surviving the life beneficiary (or leaving children).
2. If the interests vested, whether any trust provisions operated as a condition subsequent that divested Bennie’s interest before termination of the life estates.
3. If the vested interests were not divested, whether they were devisable and passed under Bennie’s will to Peggy.

## Decision

- The Supreme Court of Georgia reversed the grant of summary judgment against Peggy.
- The court held Bennie held vested remainder interests when the will took effect because he was an ascertained, living person who would have taken if the life estates had ended at that time.
- The court construed the trust’s death/issue language as conditions subsequent (defeasance provisions), not conditions precedent to vesting.
- The court concluded the conditions necessary to divest Bennie’s vested remainder did not occur before the life beneficiary’s death; therefore, Bennie’s interest was not defeated.
- Because Bennie’s vested remainder was part of his estate, it passed by devise to Peggy as his sole beneficiary.

## Legal Principles

- A remainder is vested if, when the instrument takes effect, there exists an ascertained person who would take the property if the preceding life estate ended at that moment; otherwise, the remainder is contingent.
- In construing future interests, Georgia law favors early vesting and favors construing ambiguous limitations as conditions subsequent rather than conditions precedent.
- A vested remainder, even if subject to defeasance, is generally descendible and devisable absent a clear contrary intent in the governing instrument.

## Conclusion

The court held that a named remainderman’s interest vested upon the will’s effectiveness, was not divested by the trust’s later-acting conditions before the life tenant’s death, and therefore passed under the remainderman’s will to his widow.


Swanson v. Swanson, 270 Ga. 733, 514 S.E.2d 822 (Ga. 1999)