
    Roe v. Reddick et al.
    
    No. 15794.
    April 17, 1947.
   Head, Justice.

1. Under a provision of a will “I give, bequeath and devise to my two sons [naming them], the following property, to wit: My Home Place where I now live, upon condition that the said [named sons] shall take care and support my wife . . and my daughter . . then the above described property descend and belong to the heirs of the said [named sons]” — the named sons were devised a life estate in the home place conditioned upon their taking care of and supporting the wife and daughter of the testator. See King v. McDuffie, 144 Ga. 318 (87 S. E. 22) ; Perkins v. Perkins, 147 Ga. 122 (92 S. E. 875); Banks v. Morgan, 163 Ga. 468 (136 S. E. 434); Pearre v. McDonald, 168 Ga. 752 (149 S. E. 44); Bristol Savings Bank v. Nixon, 169 Ga. 282 (150 S. E. 148); Beasley v. Calhoun, 178 Ga. 613 (173 S. E. 849) ; Rainey v. Spence, 185 Ga. 763 (196 S. E. 416); Sikes v. Moxley, 201 Ga. 76 (38 S. E. 2d, 671).

2. Where, at the time the testator devised the life estate referred to in the preceding headnote, three children of the two named beneficiaries were in life, the language, “then the above property descend and belong to the heirs” of the named beneficiaries, established a class who should take after the expiration of the life estate (Singer v. First National Bank & Trust Co., 195 Ga. 269, 272 (24 S. E. 2d, 47), and the remainder interest vested in the three children who were in esse, subject to be reopened to let in after-born children of the named beneficiaries. Milner v. Gay, 145 Ga. 858 (2) (90 S. E. 65); Nixon v. Nixon, 192 Ga. 629 (15 S. E. 2d, 883).

3. Where, after termination of the life estate, one of the named beneficiaries was survived by three children, and the other was survived by seven children, the trial court did not err in holding that the fee simple title to the estate vested in the surviving children of,.the two named beneficiaries, and that each of those coming within the above class took per capita. Compare Almand v. Whitaker, 113 Ga. 890 (39 S. E. 395); Williams v. Trust Co. of Ga., 185 Ga. 643 (196 S. E. 74); MacGregor v. Roux, 198 Ga. 520 (32 S. E. 2d, 289).

Judgment affirmed.

All the Justices concur, except Atkinson and Wyatt, JJ., who dissent because they do not think that this is a proper case for the application of the Declaratory Judgment Act. '

J. G. B. Erwin, Henry L. Barnett, and Y. A. Henderson, for plaintiff.

G. G. Pittman, for defendants.  