W.B. Haley Testator executed his will in 1931, under which each of his seven children would receive an equal share of the estate as a “defeasible fee, subject to be divested, as to any one or more of them, by the death of such child without leaving lineal descendants surviving him or her.” Testator died in 1950 and the will was probated in solemn form. In 1964, his widow and his eldest son, Herbert Haley, as co-executors under the will, filed a petition for construction of the will. In that case, this Court held that the lineal descendants of the children never actually became beneficiaries under the will, that the interest of each child of Testator was vested for life and contingent only as to the event of death without surviving lineal descendants, and that such interest, including reversionary and remainder interests, could be transferred during the child’s lifetime. Busbee v. Haley , 220 Ga. 874 142 SE2d 786 1965. Testator’s children subsequently executed agreements and quitclaim deeds Transfer Documents by which they granted to one another the reversionary interests which each had in the respective shares of the others. Herbert died in July, 1999 and was survived only by his wife and adopted daughter. In December, 1999, Testator’s two sole surviving children, Reeves and Joel, and two descendants of another child brought suit against Herbert’s widow and Regions Bank Appellees individually and as co-executors under Herbert’s will. Thereafter, Reeves died and his two sons were substituted as plaintiffs in their capacities as co-executors of their father’s will. Joel voluntarily dismissed his claims. The remaining plaintiffs Appellants are seeking their alleged share of the portion of testator’s estate which Herbert inherited under his father’s will. In an extensive order, the trial court granted summary judgment in favor of Appellees on the ground that Herbert’s adopted daughter is his “lineal descendant and thus no act of defeasance occurred under Testator’s will and on the further ground that the Transfer Documents are valid and bar any recovery by Plaintiffs.” The trial court also denied Appellants’ cross-motion for partial summary judgment, which was based on the alleged res judicata effect of Busbee .
1. Appellants contend that the trial court erroneously ruled that the Transfer Documents extinguished their rights to Herbert’s interest in Testator’s estate. According to Appellants, Herbert and the lawyer who represented both the estate and all but one of Testator’s children acted to benefit Herbert personally despite his fiduciary capacity as executor.
