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HICKS et al. v. RUSHIN.
Construction of will. Laurens Superior Court. Before Judge White.
FELTON, Justice.
1. The trial court correctly held that the original will, as altered by the testatrix in her handwriting without witnesses to the alteration, was republished by the probate of the original will, with the changes, together with the codicil which also sought to make still another change in the original will on the same subject shown by the alteration of the original will.
2. The trial court did not err in holding in effect that the "in terrorem" clause in a codicil, probated with the will, did not disqualify appellee from claiming her bequest under the will and codicils.
3. Under the law, and the facts of this case, the bequest of one-half of the proceeds of the testatrix's home to appellee absolutely and without limitation, was not reduced by a later codicil, to a claim against such sum in the amount of $100 per month, by a provision that the appellee should receive $100 per month and that the balance of the moneys remaining should draw interest, without a provision as to who would be entitled to receive it or a clearer intention to declare a trust for the life of appellee.
Aubin Rushin instituted a declaratory judgment action in the Superior Court of Laurens County seeking construction of the last will and testament of Carrie Jane Hicks Snow, which will consisted of an original will and three codicils which were probated in solemn form by the Court of Ordinary of Laurens County on February 15, 1971. The defendants were Palmer W. and Robert E. Hicks, executors of the will of Mrs. Snow, and another defendant who was dismissed from the case. Several stipulations eliminated several issues from the case. The following facts raised the issues for the trial court's decision. Item 5 of the will provided that the testatrix's home, located at 2203 Stonewall Street, together with all the carpets, blinds, draperies and fixtures, be sold and that the proceeds be equally divided between her two brothers, Palmer W. and Guy M. Hicks. The typewritten provisions of Item 5 were marked across by Mrs. Snow and a substituted provision in Mrs. Snow's handwriting inserted, and signed by her, as follows: "I want my home sold with carpets, draperies, stove and G. E. ice box the money divided half to my daughter-in-law Aubin Rushin and other half to my brother's Palmer and Guy's family. I have my reasons for this." Signed "C. J. Snow." One codicil, probated as part of the deceased's last will, was undated but properly witnessed and in part provided, in testatrix's handwriting, as follows: "The money she receives from my home I want it put in Farmer's and Merchants Bank and given to her one hundred dollars per month. The other to draw interest." This codicil concluded with the following "in terrorem" clause: "If anyone tries to break this will they loose [sic] what I have seen fit to give them."
By preliminary orders based on the agreements of the parties, the court authorized the private sale of the testatrix's home, confirmed the sale after it was made, and allowed a 5% certificate of deposit, No. 5606, dated July 16, 1971, in the Morris State Bank, to be replaced in the registry of the court by various certificates of deposit issued by named corporations which have higher interest rates than the certificate replaced.
The trial judge rendered the following judgment on the remaining issues in the case:
"It is ordered, adjudged and decreed as follows:
"1. That the motion of Louie Curry, Jr., that he be dismissed as a party defendant be and the same is hereby sustained and said Louie Curry, Jr., is so dismissed.
"2. That the attempted in terrorem clause contained in a codicil to the will of the testatrix which states, 'If anyone tries to break this will they loose what I have seen fit to give them,' is declared, as a matter of law, to be null and void and of no legal force or effect whatever.
"All costs in this matter are taxed against the defendants.
"So ordered, adjudged and decreed this 7th day of August, 1971. W. H. White Judge, Laurens Superior Court."
1. The court did not err in ruling that the codicil concerning the testatrix's home and the proceeds therefrom republished the original will changing item 5 of the original typewritten will as shown in the said original will plus the change plus the codicil in the facts stated above. Code Ann. 113-409; Burge v. Hamilton, 72 Ga. 568 (3).
Where alterations in a will occur, the law presumes, in the absence of evidence to the contrary, that the alterations were made after the execution of the will. 68 CJ 986; Schouler on Wills, Executors and Administrators (5th Ed.), 435. As to the presumption as to alterations in deeds, see Collins v. Boring, 96 Ga. 360 (3) (23 SE 401); Gilmer v. Harrison, 146 Ga. 721(92 SE 67). In this case there is no evidence to indicate that the alteration was made at or before the will was executed.
There is what seems to us a conclusive indication that the original alteration of item 5 of the will, changing the bequest of the proceeds of the sale of the home, was republished by the codicil above set forth for the reason that the codicil dealt with the proceeds from the sale of the home on the basis of the alteration of item 5 rather than the original item 5. This points up the fact that the original will was altered after its execution and that the codicil was made after the alteration. We think that the trial judge correctly ruled in accordance with the citations above and the fundamental guide in the constructions of wills, the intention of the testator when it can be ascertained from the facts and surrounding circumstances.
2. The trial court did not err in holding that the "in terrorem" clause in the will was inapplicable. The filing of a declaratory action by the plaintiff devisee was not an attack upon the will. There is no mention in the record of the filing of a caveat by the plaintiff. The search for the true meaning of a will is not an attack upon it.
3. The trial court did not err in holding that the appellee was entitled to one-half of the proceeds of the sale of the home of the testatrix and, in effect, that the sum representing that one-half interest was payable instanter. It is too fundamental to require citation of authority that the law favors the earliest possible vesting of title when no other principle of law prevents. The facts here demand the conclusion that the testatrix intended to devise a fee simple title in one-half of the proceeds of the sale of the home to the appellee. This is the clear intention of the change in item 5 of the original will and the reference thereto, though indirect, in the stated codicil. We do not think that the testatrix, under the facts here, intended to create a trust in a life estate in the appellee, with remainder over to the appellee or other legatees. We think it would have been absurd to have a trustee sit in a chair and collect the interest on the securities placed in the registry of the court and collect a commission for collecting the interest. The Act of 1950 (Ga. L. 1950, p. 310; Code Ann. 108-111.1), was not intended to be so applied, assuming that an implied or express repeal of Code 108-114 was effected by said Act of 1950. See DeVaughn v. Hays, 140 Ga. 208 (78 SE 844). In addition to this, the ruling in Houston v. Coram, 215 Ga. 101 (2) (109 SE2d 41) and cit., controls this case. The simple ruling in that case, and others cited, is that an unambiguous bequest or devise of an absolute fee title, cannot be cut down or reduced by a later expression of unascertainable meaning.
The trial judge did not err in any of his rulings which are enumerated as error.
Joe W. Rowland, for appellee.
Hicks, Eubanks & Scroggins, John H. Hicks, for appellants.
Friday May 22 15:53 EDT

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