Broach v. Hester, No. 21245
| Court | Supreme Court of Georgia |
| Writing for the Court | GRICE |
| Citation | 121 S.E.2d 111,217 Ga. 59 |
| Parties | Myrtle Hester BROACH et al. v. O. N. HESTER, Exr., et al. |
| Decision Date | 06 July 1961 |
| Docket Number | No. 21245 |
Page 111
v.
O. N. HESTER, Exr., et al.
Syllabus by the Court
There being no limitation over to some other person, as is required by Code § 113-820 in order to enforce conditions in terrorem, such condition in the will here was void, and the caveat to the application of the executors for discharge should have been sustained.
Jas. W. Arnold, Athens, for plaintiffs in error.
James M. Roberts, Atlanta, for defendants in error.
GRICE, Justice.
This case involves the issue of validity or invalidity of a testamentary condition in terrorem.
The testator, William A. Hester, Sr., by Item 2 of his will, bequeathed and devised a life estate in all of his property to his wife, with remainder over to two of his sons, O. N. Hester and [217 Ga. 60] C. A. Hester, who were also named executors. He further recited that 'My said two sons named in this item are to pay to my other children * * * the sum of Two Hundred Dollars, each, if living, otherwise to their children, when they take possession of said property.' Then, by Item 4, he bequeathed to those children two hundred dollars each, 'to be paid them by [the two sons] when they go into possession of said lands, as provided in Item 3.'
Page 112
Item 6 of the will declared, 'I desire my property to be handled with the least possible expense and herein direct and provide that if any one of my said children take any steps to cause any expense in probating this my will or contesting same any way, that such child shall forfeit any and all benefits under terms hereof.'
Upon the death of the testator his will was offered for probate. Six of the seven children to whom the two hundred dollars was bequeathed by Items 3 and 4, filed a caveat to the will, but were unsuccessful in both the court of ordinary and upon appeal to the superior court.
When the life tenant died, O. N. Hester and C. A. Hester, the remaindermen-executors, now defendants in error here, went into possession of all of the property, but did not pay the legacy to each of the seven children as provided in Items 3 and 4.
A short time after taking possession of the property, the two executors filed with the court of ordinary their application for discharge, alleging that they had fully administered the estate of the testator. The seven children, legatees as aforesaid, interposed their caveat to the application for discharge, alleging, among other things, death of the life tenant, possession of the property referred to in Item 3 by the remaindermen-executors and their refusal to pay the legatees the two hundred dollars each. Upon judgment in favor of the executors, an appeal was effected to the Superior Court of Walton County, Georgia, by six of the seven caveators. The superior court affirmed...
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Cox v. Fowler, No. S05A0708.
...... the rule, generally, [was] well established that even an alternative bequest to the residue [would] not suffice." Broach v. Hester, 217 Ga. 59, 61-62, 121 S.E.2d 111 (1961). Under current law, however, the clause is not deemed void unless the testator failed to provide "a direction in t......
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Linkous v. National Bank of Georgia, Nos. 37024
...that this article contains a specific limitation over such that the in terrorem clause must be upheld. We disagree. In Broach v. Hester, 217 Ga. 59, 62, 121 S.E.2d 111 (1961), we quoted 96 C.J.S. Wills § 992: " 'A condition in terrorem will be sustained where the will especially directs tha......
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Rayburn v. Allen, No. S05A2094.
...the testator has given property to one person with the provision that he pay a certain sum to another person....' [Cit.]" Broach v. Hester, 217 Ga. 59, 61, 121 S.E.2d 111 (1961). Compare Cox v. Fowler, 279 Ga. 501, 614 S.E.2d 59 (2005) (in terrorem Wife further urges that the superior court......
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Cox v. Fowler, No. S05A0708.
...... the rule, generally, [was] well established that even an alternative bequest to the residue [would] not suffice." Broach v. Hester, 217 Ga. 59, 61-62, 121 S.E.2d 111 (1961). Under current law, however, the clause is not deemed void unless the testator failed to provide "a direction in t......
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Linkous v. National Bank of Georgia, Nos. 37024
...that this article contains a specific limitation over such that the in terrorem clause must be upheld. We disagree. In Broach v. Hester, 217 Ga. 59, 62, 121 S.E.2d 111 (1961), we quoted 96 C.J.S. Wills § 992: " 'A condition in terrorem will be sustained where the will especially directs tha......
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Rayburn v. Allen, No. S05A2094.
...the testator has given property to one person with the provision that he pay a certain sum to another person....' [Cit.]" Broach v. Hester, 217 Ga. 59, 61, 121 S.E.2d 111 (1961). Compare Cox v. Fowler, 279 Ga. 501, 614 S.E.2d 59 (2005) (in terrorem Wife further urges that the superior court......