Fuller v. Fuller, s. 21379

• Decision Date: 05 October 1961
• Docket Number: Nos. 21379,21395,21394,s. 21379
• Parties: Scintillia FULLER et al. v. Alberta Rucker FULLER, Adm'x, et al. Henry B. FULLER et al. v. W. E. FULLER, Jr., et al. Mrs. W. E. (Pauline Birmingham) FULLER, Sr. v. CITIZENS TRUST CO. et al., Trustees, et al.
• Court: Georgia Supreme Court

Page 234

122 S.E.2d 234

217 Ga. 316

Scintillia FULLER et al. v. Alberta Rucker FULLER, Adm'x, et al.

Henry B. FULLER et al. v. W. E. FULLER, Jr., et al.

Mrs. W. E. (Pauline Birmingham) FULLER, Sr. v. CITIZENS TRUST CO. et al., Trustees, et al.

Nos. 21379, 21394, 21395.

Supreme Court of Georgia.

Oct. 5, 1961.

Syllabus by the Court

1. The action of a beneficiary under a will, in instituting an ejectment suit against the executors to recover land specifically devised to another, forfeited all benefits of such beneficary under the will in virtue of item 25 thereof which, in substance, provides that the institution of proceedings by any beneficiary to invalidate the will or any of its provisions shall annul all benefits which the will provides for such beneficiary. The action of three other beneficiaries in instituting ejectment proceedings to recover property not specifically devised by the will did not forfeit benefits provided for them in such a will.

2. Where the will seeks to set up a trust for the benefit of a number of persons as well as institutions, but the duration of the life of anyone in being constitutes no part of the specified duration of the trust, and it is provided therein that it shall not endure for more than 25 years, it is a clear violation of the rule against perpetuities, and the trust is absolutely void.

3. The wife of the testator is not barred by her acceptance of a bequest in the will of $5,000 where the testator neither expressly nor impliedly provides that the bequest is in lieu of dower from obtaining dower as provided by law. She is allowed to pay debts secured by deeds to secure debt and then have dower in the property thus freed.

Citizens Trust Company and W. E. Fuller, Jr., as executors and trustees under the will of Bishop William Edward Fuller, Sr., filed their petition in Fulton Superior Court in which they named all beneficiaries under the will as defendant, and alleged that the will had been probated in solemn form and petitioners had qualified as executors and are acting in that capacity. A copy of the will was attached to the petition. They allege that the testator was married three times; that Eldred, Douglas and Scintillia Fuller and Mattie Fuller Westbrooks are children of his first wife, and Henry B. and W. E. Fuller, Jr., and Emma Ruth Fuller Lewter, Bettie Louise Fuller Taylor and Johnny Evelyn Fuller Williamson are children of his second wife; that Johnny Evelyn Fuller Williamson is deceased, and Barbara Jean Fuller Johnson is her sole heir at law; that Mrs. W. E. (Pauline Birmingham) Fuller, Sr., is his third wife; that testator was Bishop of the Fire Baptized Holiness Church of God of the Americas. It is an unincorporated association. Item three of the will bequeathed certain lands to said church. Petitioners desire construction and a declaration if this item is valid and can the church receive the land. Item 4 bequeathed to Martin Fuller Westbrooks 'my lot on Norwood Street, Gainesville, Georgia, either improved or unimproved as the case may be, the same to be hers absolutely and in fee simple.' When the will was executed by the testator, and at his death, he did not own a lot on Norwood Street in Gainesville, Georgia, but he did own a house and lot in Gainesville, Georgia, at 533 Mill Street, which was as of said dates occupied by Mattie Fuller Westbrooks. By other provisions of the will he gave each of his children at least one house and lot. Mattie Fuller Westbrooks contends that her father intended to give her the house she occupied. The court is requested to construe the will and direct petitioners as to this item.

Item 16 provides that: 'all the rest, residue and remainder of my property of every kind and description and whereever located, including any lapsed legacy or devise, and any property over which I may have the power of disposition or appointment, I give, bequeath and devise and appoint to Citizens Trust Company and W. E. Fuller, Jr., as trustees for the uses and trusts hereinafter set forth.' Item 25 provides: 'Should any beneficiary under the terms of this will contest the validity of the will or institute any proceedings to contest the validity of the same, or any provision therein, then all the benefits provided for such beneficiary in this will are hereby revoked and annulled and the benefits which such beneficiary would have received if he had made no such contest or brought no such proceedings shall go to the residuary beneficiaries of this will in the same proportion as the other received under the residuary clause of this will.'

As to Mattie Fuller Westbrooks, in addition to the real estate she was given the sum of $1,000 which has been paid to her and under item 18 she was bequeathed $50 every six months and she is a residuary beneficiary under item 29. Property located at 132 Jackson Street, N.E., Atlanta, Georgia, is a part of the property contained in the residuary clause. The will was read to Mattie Fuller Westbrooks and thereafter she received $1,000 given to her under item 4, but thereafter on July 30, 1959, she filed ejectment proceedings against petitioners claiming an interest in the property located at 132 Jackson Street, N.E. Atlanta, Georgia. The court was requested to construe the will and direct as to whether or not all benefits to her under the will are by item 25 revoked as to her because of her action in instituting the ejectment suit.

Under item 5 Barbara Jean Fuller Johnson was bequeathed property located at 217 Randolph Street, N.E., Atlanta, Georgia, and under item 14 she was given $50 and under item 18 she was given $50 semiannually so long as the trust remained in existence and she is a beneficiary under the residuary clause. She had full knowledge of the contents of the will when she filed 19 separate ejectment suits against petitioners, claiming all or a part of 19 various tracts of land, a number of such tracts having under the will been bequeathed to other children. Petitioners ask a construction of the will and direction as to these matters.

Under item 5 there was bequeathed to W. D. Fuller property located at 194 Haywood Avenue, S.E., Atlanta, Georgia, and $500 in cash; $50 semiannually, and he was entitled under item 29 to participate in the distribution upon termination of the trust. He has received the $500 and, knowing the contents of the will, he filed ejectment proceedings against the petitioners on July 30, 1959, claiming an interest in property located at 137 Jackson Street, N.E., Atlanta, Ga., which property is a part of the residue. Construction and direction of petitioners is necessary as to whether under item 25 this conduct revoked his benefits.

Under item 13, $1,000 is given to the Fire Baptized Holiness Church of God of the Americas for missionary and evangelistic purposes to be paid $100 annually, and no direction is given as to where this money is to come from unless it be the residuary trust created by item 16. By item 19, $500 is given annually to Fuller's Normal Industrial Institute, Greenville, S. C. No time for termination of such payments is given, nor is the source from which it is to be obtained given.

Semiannually $50 is given to Barbara Jean Fuller Johnson, Eldred Fuller, Mattie Fuller Westbrooks and Douglas Fuller by item 18, without saying from what property it is to be obtained or how long the payments shall continue.

The trust created by item 16 is to terminate not later than 25 years from the date of the death of the testator under item 29. The provisions of the will are vague, uncertain and indefinite, and petitioners are in doubt as to their duties thereunder. Petitioners desire construction and direction from the court as to the trust as follows: Is it valid, if so how long shall it continue, and the amount to be paid to the beneficiaries under item 20? Testator had executed loan deeds conveying certain lands to lenders as security for loans. The properties and amount of loans were set forth.

The right of Mrs. W. E. (Pauline Birmingham) Fuller, Sr. to claim dower in real estate belonging to the testator is doubtful, and without a declaratory judgment construing the will and direction, petitioners can not act without risk. She was his wife at testator's death. Item 28 recites that marriage is anticipated, and in that event his wife is given $5,000 and it is stated that she would be provided for during his life. She was pastor of a church at $6,000 per year salary. With full knowledge of the contents of the will and properties of the estate, and advice of her own counsel she received the $5,000 under item 28. Thereafter, she applied for and has been paid a year's support in the amount of $12,000. Her counsel has stated to petitioner's counsel that she intends to apply for dower, and in an amendment to her answer she asked the court of grant her dower. The beneficiaries are demanding real estate given them. Construction and direction is requested as to whether under these facts testator intended the bequest to be in lieu of dower as provided in Code § 31-110, subd. 2. If not is she estopped by having elected to take under the will from claiming dower in properties specifically devised? And finally if entitled to dower, can the wife pay the loans and have dower in property on which security deeds by testator are outstanding? The prayer was for construction, direction and a declaratory judgment. All heirs and legatees were made parties. After most of the beneficiaries filed responsive pleadings, it was stipulated that the facts alleged in the petition were true, and it was consented that the judge without a jury render judgment. Thereupon judgment was rendered adjudicating the following which by three writs of error are brought here for review, to wit: (1) By instituting the ejectment suits beneficiaries did not forfeit under item 25 their benefits under the will. This is excepted to in Case No. 21394 by Henry R. Fuller and Emma Ruth Fuller Lewter; in ...