Dillard v. Dillard
| Decision Date | 07 September 1961 |
| Docket Number | No. 21315,21315 |
| Parties | Patsy DILLARD, by Next Friend, et al. v. J. L. DILLARD et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court
A fee simple estate passed to the survivor of the makers of a joint will which contained the following item: 'Upon the death of either of us, all the property of the deceased is given, devised and bequeathed to the survivor.' Said fee simple estate was not limited or qualified by a subsequent item stating that 'It is the will of each of us that upon the death of the survivor, or upon the simultaneous death of both the makers hereof, that all of our estate and the estate of the survivor, both real and personal, wheresoever the same may be located, shall go in equal shares absolutely and in fee simple to Tommy B. Dillard and Patricia F. Dillard.'
Patsy Dillard and Tommy B. Dillard, beneficiaries under item IV of the joint will of William E. Curry and Mattie H. Curry, brought their petition in the Superior Court of Muscogee County naming as defendants, Christine Crane Brannan and J. L. Dillard. The petitioners sought a declaratory judgment construing the will of William E. Curry and Mattie H. Curry and also prayed for a decree of title to certain described real property in them. The material allegations of the petition are as follows:
In 1930 William E. Curry acquired fee simple title to Lot 12, Glen Eden Survey in Muscogee County, Georgia. In 1952 Curry's wife, Mattie H. Curry, who had no interest in the land at that time, deeded it to Christine Crane Brannan, defendant in error here.
In 1954 William E. and Mattie H. Curry executed a joint will, the material portions of which are as follows:
'Item III Upon the death of either of us, all the property of the deceased is given, devised and bequeathed to the survivor.
'Item IV It is the will of each of us that upon the death of the survivor, or upon the simultaneous death of both the makers hereof, that all of our estate and the estate of the survivor, both real and personal, wheresoever the same may be located, shall go in equal shares absolutely and in fee simple to Tommy B. Dillard and Patricia F. Dillard.'
William E. Curry died in 1955 and the will was probated as his will.
Subsequent to his death, Mattie H. Curry, in 1955, deeded the property described above to J. L. Dillard, also a defendant in error.
Mattie H. Curry died in 1960 and this suit was brought in February of 1961.
To the petition Christine Crane Brannan filed a motion for summary judgment, demurrers and an answer. After a hearing on the motion was held the court granted the motion for summary judgment.
The plaintiffs in error except to that order on the ground that the court erroneously construed Items III and IV of the will to vest fee simple title to the property in question in Mattie H. Curry, when under a proper construction of said items only a life estate vested in her upon the death of her husband, and further that the court erroneously held that fee simple title to the property vested in Christine Crane Brannan under the 1952 deed from Mattie H. Curry.
Ray, Owens, Keil & Thornton, Jack M. Thornton, Columbus, for plaintiffs in error.
Foley, Chappell, Young & Hollis, T. Milton Jones, Columbus, for defendants in error.
The sole issue involved in the case under consideration is the extent and nature of the estate taken by the survivor of the makers of the joint will.
The plaintiffs in error contend that Items III and IV of the will indicate the intent of the makers of the will to leave the survivor a life estate with a vested remainder in fee simple to the plaintiffs in error.
The defendants in error contend that Mattie H. Curry, by surviving her husband and joint testator, received fee simple title to the estate by virtue of Item III of the will and further contend that Item IV was meant to apply only if (1) the makers of the will died simultaneously or (2) if, after one of the makers had predeceased the other, the latter chose to leave the will in effect.
'The word 'heirs,' or its equivalent, is not necessary...
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Dillard v. Brannan
...granting of summary judgment where the pleadings disclose no genuine issue as to any material fact. This is a companion case to Dillard v. Dillard, 121 S.E.2d 766. The plaintiff in error here filed a separate bill of exceptions and excepted to the judgment on different J. L. Dillard, plaint......
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Caudell v. Caudell
... ... On appeal, as they did in the trial court, the defendants rely on Dillard v. Dillard, 217 Ga. 176, 121 S.E.2d 766 (1961), and Johnson v. Johnson, 240 Ga. 21, 239 S.E.2d 346 (1977), for the proposition that ... 260 Ga. 803] ... ...