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RUTH et al. v. FIRST NATIONAL BANK OF ATLANTA et al.
27795.
Construction of will. Fulton Superior Court. Before Judge Pye.
NICHOLS, Justice.
The remainder interest in the life estate created by the will of B. B. Wroth did not vest in the remaindermen until the death of the life tenant and the estates of the remaindermen who predeceased the life tenant were not entitled to any interest in the life estate.
The will then provided: "Upon the death of my sister, Anna T. Wrothor [sic] at my death in the event that she shall pre-decease me, than I give, bequeath and devise the remainder of the corpus of my estate in fee simple to the following persons in the proportions stated:
"(1) One Fourth (1/4) I give and bequeath to my cousin, Edna K. Wroth. In the event she is not in life at the time of the distribution of the Corpus of my estate, then I will and direct that the share herein bequeathed to her, shall be equally divided between Joseph S. Trew and Wesley H. Trew.
"(2) One Fourth (1/4) I give and bequeath to my cousin, Margaret W. Woodall, absolutely.
"(3) One Fourth (1/4) I give and bequeath to my cousin, Sarah DeC. Ruth, absolutely.
"(4) One Eighth (1/8) I give and bequeath to my cousin, Louise E. Carroll. In the event that she is not in life at the time of the distribution of the Corpus of my estate then I will and direct that the share herein bequeathed to her shall go to my cousin, Clayton W. Wright, absolutely.
"(5) One Eighth (1/8) I will and bequeath to my friend, Raymond P. Nejak, absolutely.
"In the event of the lapse of any of the above bequests or in the event of the death of any of the persons above described as the ultimate recipients of any portion of my estate, then I will and direct that the legacies of any such persons shall be divided in the same pro rata as provided for in the original division."
Margaret Woodall, Louise Carroll and Clayton W. Wright, survived the testator, but predeceased Anna T. Wroth, upon whose death the trust was to be distributed.
The trial court, after holding that the law of Georgia controlled the construction of such will, found that the heirs at law of Margaret Woodall and Clayton W. Wright were to receive the shares designated in sub paragraphs (2) and (4). The appeal is from this judgment, and the enumerations of error all assert that under a proper construction of the will that the last unnumbered paragraph of the will quoted above requires a holding that the shares designated in sub paragraphs (2) and (4) should be distributed to the persons named in sub-paragraphs (1), (3) and (5) above. The trial court also held that the last paragraph quoted above need not be considered.
In construing a will the first and foremost rule of construction is to determine the intention of the testator. Code 113-806. Generally, courts are not limited in construction of a will to a particular item, sentence or clause, but may look to the four corners of the will to ascertain the intention of the testator. See Davant v. Shaw, 206 Ga. 843 (59 SE2d 500); Aiken v. Aiken, 209 Ga. 819 (76 SE2d 481).
Looking at the four corners of the will, the last paragraph of the ninth item cannot be excluded as was done by the trial court, and the intention of the testator must be determined, if no ambiguity exists, by giving proper consideration to such paragraph.
Much emphasis is placed upon the use of the word absolutely after four of the five bequests dealing with the final distribution of the trust estate. However, a review of the whole will shows that in item 5 after giving a designated amount of money to one beneficiary "absolutely" the testator provided that in the event such designated person did not survive the testator, such money was to go to other named beneficiaries. The use of the word "absolutely" must be construed as a word of a description of the quantum of estate given and not as a word describing the right of the named legatee to take.
The will provided that the trust would be terminated upon the death of his sister, should she survive him, and that then the remainder of the estate would go to named persons or substitutes if such named beneficiaries were not in life at the time of distribution of the estate. This use of the word "then" must be construed as "at that time" and when taken in conjunction with the last unnumbered paragraph of item 9, there was no vesting of any estate in the trust in the beneficiaries until the death of the testator or his sister, whichever occurred later. See Fourth Nat, Bank of Columbus v. Brannon, 227 Ga. 191 (179 SE2d 232), and cits. Since the beneficiaries under subparagraphs (2) and (4) of item 9 did not survive the testator's sister, 3/8 of the trust would be distributed to the named beneficiaries in subparagraphs (1), (3) and (5), with those named in subparagraphs (1) and (3) receiving twice the amount the beneficiary named in sub paragraph (5) would receive.
The judgment of the trial court holding that the estate vested upon the death of the testator as to Margaret W. Woodall and upon the death of Louise E. Carroll that the share referred to in subparagraph (4) vested in Clayton W. Wright contingent only as to event must be reversed.
Judgment reversed. All the Justices concur.
Phillip F. Etheridge, Shoob, McLain & Jessee, James P. McLain, Gerald H. Appleby, for appellees.
Westmoreland, Hall & Bryan, Harry P. Hall, Jr., P. Joseph McGee, for appellants.
ARGUED MARCH 13, 1973 -- DECIDED APRIL 13, 1973 -- REHEARING DENIED APRIL 25, 1973.
Friday May 22 13:49 EDT


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