Bratton v. Trust Co. of Georgia

• Decision Date: 19 October 1940
• Docket Number: 13393,13412.
• Citation: 11 S.E.2d 204,191 Ga. 49
• Parties: BRATTON v. TRUST CO. OF GEORGIA et al. FIRST NAT. BANK OF ATLANTA v. SAME.
• Court: Georgia Supreme Court

11 S.E.2d 204

191 Ga. 49

BRATTON v. TRUST CO. OF GEORGIA et al.

FIRST NAT. BANK OF ATLANTA v. SAME.

Nos. 13393, 13412.

Supreme Court of Georgia

October 19, 1940

Syllabus by the Court.

1. The language of the will, conferring upon the persons named as executors a power to dispose of the remainder of the testator's property after the termination of a life-estate, created a valid power of appointment as to such remainder.

2. The cardinal principle in the interpretation of a will is to give effect to the testator's intention, where it can be ascertained from the will, and where such intention is not incompatible with established rules of law and equity. When called upon to construe a will, the court may hear parol testimony of the circumstances of the testator at the time of its execution; so the court may hear parol testimony to explain all ambiguities, both latent and patent. The donee of a power, who is also appointed executor or trustee by the instrument creating the power, is not deprived of his right to

exercise it by renouncing, resigning, or being discharged from his office or trust, unless the power was given him simply virtute officii. In determining who has the right to exercise a power in a will, the intention of the testator is to be sought. If it is merely personal to the donee by reason of trust and confidence placed in him by the testator, the power does not follow the office. Consequently a personal power by reason of a special trust or confidence placed in the donee by the testator would not authorize an administrator with the will annexed to exercise the power. Where the power is impersonal, or where the testator has not specially provided that it shall be exercised only by a named executor, it is exercisable by any person succeeding to the office to which the power is attached. Under the preceding rules, the power to dispose of the remainder estate was personal to those named as executors, did not pass to the administrator with the will annexed; and the donees of the power having properly exercised it, the court did not err in holding such disposition valid, to the exclusion of the heir of the preceding life-tenant.

No 13393:

McElreath, Scott, Duckworth & DuVall, of Atlanta, for plaintiff in error.

Smith, Smith & Bloodworth and Brandon, Hynds & Tindall, all of Atlanta, for defendants in error.

No. 13412:

Brandon, Hynds & Tindall, of Atlanta, for plaintiff in error.

McElreath, Scott, Duckworth & DuVall and Smith, Smith & Bloodworth, all of Atlanta, for defendants in error.

WORRILL Judge.

The Trust Company of Georgia, as administrator with the will annexed of the estate of Mrs. Clara Sanders Bratton, brought its petition for construction of her will, and for direction as to the administration of her estate. She died in October, 1938, leaving a will executed in March, 1937, material parts of which read as follows: 'I desire, on account of the advanced age and ill health of my husband, to relieve him of the responsibilities of executorship, and do herewith appoint my sister Julia Sanders Eddleman, and my brother John W. Sanders, sole executors of my estate--without bond, and they are not to be subject to the court. I desire my executors to immediately form a trust of my estate for the purpose of maintenance of my husband during his remaining lifetime, after my death. After my husband's death, I desire that this aforementioned trust be dissolved, and my entire estate then be disposed of as by my executors they see fit.' It was alleged that the petitioner qualified as such administrator; that the sister and brother of the testatrix, who were nominated in the will as executors, are nonresidents of Georgia, and as such are disqualified under the law to act as executors; that they renounced in writing such executorship, admitting their disqualification but expressly reserving to themselves as individuals 'all rights and powers which may be vested, created, or conferred upon them or in their favor, under or by virtue of said will;' that the testatrix left as her sole heir at law her husband, Laurence R. Bratton, named in the will as life-tenant; that he died in July, 1939, leaving a will naming the First National Bank of Atlanta as executor; that said bank has had his will probated in common form, and has qualified as executor; that on April 18, 1939, there was delivered to it as administrator of the estate of Mrs. Bratton a document or indenture dated April 14, 1939, formally executed by Mrs. Julia Sanders Eddleman and John W. Sanders, which purports to be an execution by the named donees of a power of appointment with reference to the remainder of the estate of Mrs. Bratton, and nominating, constituting, and appointing, as remaindermen of said estate, Mrs. Julia Sanders Eddleman and John W. Sanders as entitled to a one-third undivided interest each, and James Edwin Hickey and Richard Lee Hickey, nephews of the testatrix, as entitled to a one-sixth undivided interest each; and that this document purports to authorize and direct the administrator of the estate to make final distribution and settlement accordingly.

Instruction of the court was prayed, as to the meaning and effect of the above-quoted provisions of the will of Mrs. Bratton, touching the disposition of her estate on the death of her husband; whether thereby a general power of appointment was given to Mrs. Eddleman and Mr. Sanders as to the remainder of said estate on the death of the life-tenant; and whether the said document constituted a valid execution of such power of appointment as was created by the will, so as to authorize a legal and final distribution of said estate thereunder.

Mrs. Julia Sanders Eddleman, John W. Sanders, the First National Bank of Atlanta, as executor of the will of Laurence R. Bratton, James Edwin Hickey, and Richard Lee Hickey were named as defendants and duly served.

John Bratton, plaintiff in error, intervened, and alleged that he was the brother and only heir at law of Laurence R. Bratton, deceased; that the purported will of Laurence R. Bratton was not his will, and intervenor intended to caveat probate thereof in solemn form; that if his caveat be sustained, there will be an intestacy, and he will be entitled to the entire estate of Laurence R. Bratton, as the only heir at law; and therefore that he is entitled to intervene in this proceeding for the protection of his rights.

All of the defendants as well as the intervenor filed answers to the petition of the Trust Company, and by consent the case was heard by the judge without the intervention of a jury. At the trial no issues of fact were raised. By stipulations of counsel and evidence, the material allegations of fact in the petition were proved where not expressly admitted in the answers. It was shown by testimony that John W. Sanders wrote the will of Mrs. Clara Sanders Bratton, his sister, in his own hand, at her dictation; and that he alone of the parties was present when the will was executed and witnessed immediately after it had been written out. He testified that his father, William C. Sanders, who died several years ago, left an estate of approximately $500,000, leaving as heirs the witness' mother and five children of the decedent, including the witness. Under the terms of that decedent's will, the widow received $100,000 and the home. The remainder of the estate was divided five ways; each child receiving an equal part, and Mrs. Clara Sanders Bratton receiving the same as the other four children. The witness estimated that she had inherited about $50,000 cash, plus real estate, which had been platted and sold off from time to time. Sanders further testified that when he and Mrs. Eddleman, his sister, did not qualify as executors under the will of Mrs. Bratton, and renounced this office, they reserved the right to carry out their sister's wishes; and that he and his sister had executed the paper, dated April 14, 1939, above described, disposing of the remainder of the estate after the termination of the life-tenancy in the husband of Mrs. Bratton.

The court decreed that Laurence R. Bratton, the husband, took only a life-estate; that, as to the remainder after his death, a general power of appointment was conferred upon the defendants, Mrs. Julia Sanders Eddleman and John W. Sanders, sister and brother respectively of the testatrix; that said power of appointment was personal to said donees, not attaching to the office of executor, and not subject to be exercised by the administrator with the will annexed; that the donees of said power had made a valid written execution of said power by said indenture of April, 1939, naming, as appointees to receive in distribution of said remainder, Mrs. Julia Sanders Eddleman, sister of the testatrix, and John W. Sanders, brother, each a one-third undivided interest, and James Edwin Hickey and Richard Lee Hickey, nephews of the testatrix, each a one-sixth undivided interest. It was also decreed that neither the First National Bank as executor of the will of Laurence B. Bratton, nor John Bratton, his brother and sole heir at law, had any right, title, interest, or equity in or to the remainder of the estate of Mrs. Clara Sanders Bratton.

Separate direct bills of exceptions were taken from this decree by John Bratton and by the First National Bank as executor of the will of Laurence R. Bratton.

1. The first question submitted by the plaintiffs in error for our consideration and determination is, what was the effect of the provision in the will of the testatrix with reference to the title to the remainder of her property, after termination of the life-estate given to her husband, Laurence R. Bratton that is, whether a valid power of appointment as to such remainder was created or not. It...