GA Code § 44-6-22 (2021)
2021 Georgia Code|Title 44 - Property|Chapter 6 - Estates|Article 2 - Fee Simple Estates|§ 44-6-22. Creation of Estate to Commence in Future; Fee in Abeyance; Fee Limited Upon Fee

 An absolute estate may be created to commence in the future, and the fee may be in abeyance without detriment to the rights of subsequent remainders. A fee may be limited upon a fee, either by deed or will, where the plain intention of the grantor or testator requires it and no other rule of law is violated thereby.   (Orig. Code 1863, § 2227; Code 1868, § 2221; Code 1873, § 2247; Code 1882, § 2247; Civil Code 1895, § 3082; Civil Code 1910, § 3658; Code 1933, § 85-502.)   Law reviews.   - For article, "Creation of Defeasible Fees," see 15 Ga. B.J. 20 (1952). For article, "Descendible Future Interests in Georgia: The Effect of the Preference for Early Vesting," see 7 Ga. L. Rev. 443 (1973). For article, "The Rule Against Perpetuities as Applied to Georgia Wills and Trusts," see 16 Ga. L. Rev. 235 (1982). For comment on Jenkins v. Shuften, 266 Ga. 315, 57 S.E.2d 283 (1950), see 12 Ga. B.J. 477 (1950).   JUDICIAL DECISIONS    Remainder or executory devise at common law could not be limited upon a fee, but since the Code of 1863 this statute has been the law. Greer v. Pate, 85 Ga. 552, 11 S.E. 869 (1890) (see O.C.G.A. § 44-6-22).    Common-law rule that a fee cannot be limited on a fee has been abolished. Sanders v. First Nat'l Bank, 189 Ga. 450, 6 S.E.2d 294 (1939).   Determinable fee legal.    - Grant of a qualified or determinable fee subject to be divested upon the sufficiency of certain conditions is legal because a fee may be limited upon a fee. Davis v. Hollingsworth, 113 Ga. 210, 38 S.E. 827, 84 Am. St. R. 233 (1901); Shealy v. Wammock, 115 Ga. 913, 42 S.E. 239 (1902); Dean v. Wall, 154 Ga. 637, 115 S.E. 78 (1922).    There is no obstacle to a holding that though the remaindermen took estates in fee, vested as of the date of the death of the testator, yet, since the fees were defeasible fees, the executory devise would take effect if the contingency provided for in the will should eventuate. Sanders v. First Nat'l Bank, 189 Ga. 450, 6 S.E.2d 294 (1939).    Defeasible fee is a present, possessory freehold estate of inheritance; it may endure forever, but may also be brought to an end by a stated event. It has the attributes of a fee interest, such as general inheritability, but is not a fee simple due to the fact that it may be defeased. The event may be the continuance or end of some situation, the happening or failure of happening of some occurrence or the performance or nonperformance of some condition. McDonald v. Suarez, 212 Ga. 360, 93 S.E.2d 16 (1956).    Essentials of a defeasible fee are that the grantee must first take an estate in fee; that is to say, an estate which may run indefinitely with the general attributes of a fee simple, but subject to being defeated by some contingency which may arise after the grantee's estate has become vested. Sanders v. First Nat'l Bank, 189 Ga. 450, 6 S.E.2d 294 (1939); McDonald v. Suarez, 212 Ga. 360, 93 S.E.2d 16 (1956).   Creation of defeasible fee with executory limitation.    - A defeasible fee with an executory limitation is created when a testator gives land to one in fee simple, but subsequently provides in the testator's will that, in case a certain event does or does not happen, the estate will go to another. Jenkins v. Shuften, 206 Ga. 315, 57 S.E.2d 283 (1950); Trimble v. Fairbanks, 209 Ga. 741, 76 S.E.2d 16 (1953); McDonald v. Suarez, 212 Ga. 360, 93 S.E.2d 16 (1956).   Fee need not pass out of grantor.    - It is not necessary, whether a trust for the life tenant is created or not, for the fee to pass out of the grantor or devisor with the particular estate. Fleming v. Hughes, 99 Ga. 444, 27 S.E. 791 (1896).    Reversionary interest created by a fee simple determinable is alienable. Flaum v. Middlebury, Inc., 246 Ga. 682, 272 S.E.2d 695 (1980).    Fee simple determinable provides for automatic reversion of the estate upon the occurrence of the limitation. Flaum v. Middlebury, Inc., 246 Ga. 682, 272 S.E.2d 695 (1980).    Devise to the wife and children of a yet-unmarried son is valid and the executor holds the property in abeyance as quasi-trustee until the marriage of the son, when it vests in the wife, subject to be shared by future born children of the husband. Knowles v. Knowles, 132 Ga. 806, 65 S.E. 128 (1909).   Power of appointment upon divesting qualified fee.    - When, under a deed, a base or qualified fee is conveyed subject to be divested upon the happening or nonhappening of an event, with power in the grantee to appoint the property to any member of a designated class in the event the qualified fee is divested, the nonexercise of such power by the grantee does not enlarge the qualified fee into an absolute fee. Guess v. Morgan, 196 Ga. 265, 26 S.E.2d 424 (1943).   Interpretation of will to avoid creation of estate tail.    - Since an estate tail is void but a fee may be limited upon a fee, the court held that the probable intent of the testator was to give a fee, subject to be reduced or divested upon certain contingencies, such interpretation being possible, rather than an estate tail. Phinizy v. Wallace, 136 Ga. 520, 71 S.E. 896 (1911).    Cited in Nelson v. Estill, 175 Ga. 526, 165 S.E. 820 (1932); Taylor v. Trustees of Jesse Parker Williams Hosp., 190 Ga. 349, 9 S.E.2d 165 (1940); Padgett v. Hatton, 200 Ga. 209, 36 S.E.2d 664 (1946); Jenkins v. Shuften, 206 Ga. 315, 57 S.E.2d 283 (1950); Stahl v. Russell, 206 Ga. 699, 58 S.E.2d 135 (1950); Trimble v. Fairbanks, 209 Ga. 741, 76 S.E.2d 16 (1953); Lanier v. Lanier, 218 Ga. 137, 126 S.E.2d 776 (1962); Mann v. Blalock, 286 Ga. 541, 690 S.E.2d 375 (2010).   RESEARCH REFERENCES   Am. Jur. 2d.   - 28 Am. Jur. 2d, Estates, §§ 13, 14, 403.   C.J.S.   - 31 C.J.S., Estates, §§ 3, 16.   ALR.   - Gift or grant in terms sufficient to carry the whole property absolutely as so operating where followed by a purported limitation over of property not disposed of by the first taker, 17 A.L.R.2d 7.