Cox v. Fowler, No. S05A0708.

CourtSupreme Court of Georgia
Writing for the CourtCarley
Citation279 Ga. 501,614 S.E.2d 59
PartiesCOX v. FOWLER.
Decision Date06 June 2005
Docket NumberNo. S05A0708.
279 Ga. 501
614 S.E.2d 59
COX
v.
FOWLER.
No. S05A0708.
Supreme Court of Georgia.
June 6, 2005.
Reconsideration Denied June 30, 2005.

Samuel Jeffrey Rusbridge, Dyer & Rusbridge, P.C., Canton, Floyd Ernest Propst

Page 60

III, Caldwell & Watson, LLP, Atlanta, for Appellant.

Adam R. Gaslowitz, Adam R. Gaslowitz & Associates, LLC, Atlanta, for Appellee.

CARLEY, Justice.


After Rogers Rhine Turner died, his two daughters, Francie Evelyn Cox and Janice Eloise Fowler, litigated their respective rights to his estate. See Fowler v. Cox, 264 Ga.App. 880, 592 S.E.2d 510 (2003). Ms. Cox asserted, among her other claims, that Ms. Fowler should be disinherited for violating the in terrorem clause of their father's will, which provides:

Should any beneficiaries hereunder contest or initiate legal proceedings to contest the validity of this Will or any provision herein or to prevent any provision herein from being carried out in accordance with its terms (whether or not in good faith and with probable cause), then all the benefits provided in this Will for such contesting beneficiary, and any of such beneficiary's descendants, are revoked and annulled. Such benefits, if not a part of the residue, shall go over to and become a part of the residue of the estate. If such contesting beneficiary is a beneficiary under any Item of this Will that disposes of the residue of my estate, such contesting beneficiary, and his or her descendants, shall cease to be a member of the class of beneficiaries to whom distributions are required or permitted to be made under such Item and, upon final division and distribution of the property passing under such Item, the share to which such contesting beneficiary and his or her descendants would otherwise have been entitled shall go over and be distributed to my daughter, JANICE ELOISE FOWLER, if then living, but if she is not then living, then to her then living descendants, per stirpes, provided that JANICE ELOISE FOWLER and her descendants are not contesting beneficiaries.

On motion for summary judgment, the issue of whether Ms. Fowler had violated the provision was not reached, because the trial court found that the clause was void for failure to give direction as to the disposition of the property that would have gone to her if she was the contesting beneficiary. Ms. Cox appeals from that order of the trial court construing the will.

[279 Ga. 502] Under the former law, an in terrorem clause was void unless it expressly named a person who would take in the event that the will was contested. "In considering whether there exist[ed] a limitation over to some other person, as required by [the prior law], ... 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 the will as to the disposition of the property if the condition in terrorem is violated...." OCGA § 53-4-68(b).

Thus, the present statute does not require that an individual must be named as an authorized alternative beneficiary. "The rules of statutory interpretation demand that we attach significance to the Legislature's action in removing the ... limiting language. [Cit.]" Transportation Ins. Co. v. El Chico Restaurants, 271 Ga. 774, 776, 524 S.E.2d 486 (1999). In matters of statutory construction, "we look diligently for the General Assembly's intention, bearing in mind relevant old laws, evils sought to be addressed and remedies interposed. [Cit.]" TermNet Merchant Services v. Phillips, 277 Ga. 342, 344(1), 588 S.E.2d 745 (2003). Therefore, as noted in the comment to OCGA § 53-4-68, the legal effect of that code section is to broaden the scope of the previous law

by allowing a condition in terrorem to take effect not merely in the event there is a limitation over to some other named person (as provided in the former statute) but rather in any case in which the will contains directions as to how the property is to be distributed if the condition in terrorem is violated.

"The cardinal rule in construing a legislative act, is '"to ascertain the legislative intent and purpose in enacting the law, and then to give it that construction which will effectuate the legislative intent and purpose."' [Cit.]" Carringer v. Rodgers, 276 Ga. 359, 363, 578

Page 61

S.E.2d 841 (2003). Giving effect to the General Assembly's elimination of the requirement that an in terrorem clause name a person as the alternative beneficiary necessarily means that the will may now direct that a forfeited bequest or devise become part of the residue. Accordingly, the relevant inquiry in this appeal is whether Mr. Turner's will made provision for either an individual or the residuary estate to take the property which was forfeited by a beneficiary who, contrary to his testamentary intent, contested the instrument. If he did, then the law mandates that his "direction in the will shall be carried out." OCGA § 53-4-68(b).

[279 Ga. 503] Under the terms of the in terrorem clause contained in Mr. Turner's will, such property as would otherwise go to a contesting beneficiary, "if not a part of the residue, shall go over to and become a part of the residue of [the] estate." Should the contesting beneficiary be a beneficiary under...

To continue reading

Request your trial
13 practice notes
  • Code Revision Comm'n ex rel. Gen. Assembly of Ga. v. Public.Resource.Org, Inc., No. 17-11589
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • October 19, 2018
    ...(explaining that "[t]he express intent of [the statutory provision] ... is set out in the Comment to O.C.G.A. § 14-2-86"); Cox v. Fowler, 279 Ga. 501, 614 S.E.2d 59 (2005) (citing OCGA comments as showing the "legal effect" of and "the General Assembly’s intention" with respect to a statuto......
  • Patton v. Vanterpool, S17A0767
    • United States
    • Supreme Court of Georgia
    • October 16, 2017
    ...by our Court of Appeals.1 Very often the authority cited for the mischief rule is case law rather than statutes. See, e.g., Cox v. Fowler, 279 Ga. 501, 502, 614 S.E.2d 59 (2005) (citing Carringer v. Rodgers, 276 Ga. 359, 363, 578 S.E.2d 841 (2003) for the proposition that "[t]he cardinal ru......
  • Radioshack Corp. v. Cascade Crossing II, No. S07Q0957.
    • United States
    • Supreme Court of Georgia
    • October 29, 2007
    ...the law, and then to give it that construction which will effectuate the legislative intent and purpose.'" (Cit.)' [Cit.]" Cox v. Fowler, 279 Ga. 501, 502, 614 S.E.2d 59 (2005). Thus, it is sufficient that, in the 30 years since the decision in Burgess, "[t]here has been no attempt on the p......
  • Wright v. Brown, No. A15A1788.
    • United States
    • United States Court of Appeals (Georgia)
    • March 2, 2016
    ...often the authority cited for the principles set out in those statutes is case law rather than the statutes. See, e.g., Cox v. Fowler, 279 Ga. 501, 502, 614 S.E.2d 59 (2005) (citing Carringer v. Rodgers, 276 Ga. 359, 363, 578 S.E.2d 841 (2003) for the proposition that "the cardinal rule in ......
  • Request a trial to view additional results
13 cases
  • Code Revision Comm'n ex rel. Gen. Assembly of Ga. v. Public.Resource.Org, Inc., No. 17-11589
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • October 19, 2018
    ...that "[t]he express intent of [the statutory provision] ... is set out in the Comment to O.C.G.A. § 14-2-86"); Cox v. Fowler, 279 Ga. 501, 614 S.E.2d 59 (2005) (citing OCGA comments as showing the "legal effect" of and "the General Assembly’s intention" with re......
  • Patton v. Vanterpool, S17A0767
    • United States
    • Supreme Court of Georgia
    • October 16, 2017
    ...by our Court of Appeals.1 Very often the authority cited for the mischief rule is case law rather than statutes. See, e.g., Cox v. Fowler, 279 Ga. 501, 502, 614 S.E.2d 59 (2005) (citing Carringer v. Rodgers, 276 Ga. 359, 363, 578 S.E.2d 841 (2003) for the proposition that "[t]he cardin......
  • Radioshack Corp. v. Cascade Crossing II, No. S07Q0957.
    • United States
    • Supreme Court of Georgia
    • October 29, 2007
    ...and then to give it that construction which will effectuate the legislative intent and purpose.'" (Cit.)' [Cit.]" Cox v. Fowler, 279 Ga. 501, 502, 614 S.E.2d 59 (2005). Thus, it is sufficient that, in the 30 years since the decision in Burgess, "[t]here has been no attempt on......
  • Wright v. Brown, No. A15A1788.
    • United States
    • United States Court of Appeals (Georgia)
    • March 2, 2016
    ...often the authority cited for the principles set out in those statutes is case law rather than the statutes. See, e.g., Cox v. Fowler, 279 Ga. 501, 502, 614 S.E.2d 59 (2005) (citing Carringer v. Rodgers, 276 Ga. 359, 363, 578 S.E.2d 841 (2003) for the proposition that "the cardinal rul......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT