## Facts

- Watson Usry died in 1967 owning land and left a will creating successive life estates and a remainder to descendants.
- The will devised the land to Usry’s wife, Lucille, for life; at her death, the land was to go to Usry’s children who survived Lucille, each taking a life interest.
- The will provided that, upon the death of Usry’s last surviving child, “title in fee simple” would vest in Usry’s grandchildren, per stirpes.
- Usry had five grandchildren at his death, including Hoyt, who survived Usry but died in 1970 leaving three children.
- The last surviving child (last life tenant) died in April 2000, ending the life estates.
- Jack’s children and Jack’s widow claimed the fee did not vest until 2000 and therefore only the grandchildren who survived all life tenants took the property.
- Hoyt’s children claimed the remainder vested in Hoyt at Usry’s death and passed to them upon Hoyt’s death.

## Issues

1. Whether the will vested the grandchildren’s remainder interest at the testator’s death or only at the death of the last surviving child/life tenant.

## Decision

- The Supreme Court of Georgia affirmed summary judgment for Hoyt’s children.
- The court held the grandchildren’s fee simple remainder vested at Usry’s death, subject to the intervening life estates.
- The court treated the clause referencing vesting “upon the death of my last surviving child” as postponing possession, not imposing a survival condition on the grandchildren.
- Hoyt’s vested remainder was not divested by his death before the life estates ended and passed to his children.

## Legal Principles

- Construction of a will is a question of law for the court.
- The controlling rule in will construction is effectuating the testator’s intent as shown by the whole instrument.
- Georgia law prefers vested remainders over contingent remainders and generally favors vesting at the testator’s death absent clear, unambiguous language postponing vesting.
- Express survival language applied to one class (children as life tenants) and omitted as to another class (grandchildren as remaindermen) indicates no survival condition for the omitted class.
- A will may vest title at the testator’s death while postponing enjoyment or possession until the termination of prior life estates.

## Conclusion

The court construed the will to vest the grandchildren’s remainder in fee simple at the testator’s death, with possession deferred until the last life tenant died; therefore, a grandchild who survived the testator but died before the life estates ended held a vested interest that passed to that grandchild’s descendants.


Usry v. Farr, 274 Ga. 438, 553 S.E.2d 789 (Ga. 2001)