Hood v. Todd

• Decision Date: 17 May 2010
• Docket Number: No. S10A0131.,S10A0131.
• Citation: 695 S.E.2d 31,287 Ga. 164
• Parties: HOOD et al.v.TODD.
• Court: Georgia Supreme Court

287 Ga. 164

695 S.E.2d 31

HOOD et al.v.TODD.

No. S10A0131.

Supreme Court of Georgia.

May 17, 2010.

Caldwell & Watson, LLP, Wade H. Watson III, Laura K. Bonander, Atlanta, Hulsey Oliver & Mahar, Samuel L. Oliver, Thomas D. Calkins, Gainesville, for appellant.

Cook, Noell, Tolley, Bates & Michael, J. Vincent Cook, Jay W. Cook, Robert C. Irwin III, Athens, for appellee.

HUNSTEIN, Chief Justice.

AppelleeRegina Gordon Todd seeks to establish her right to a child's share of the estate of testator John E. Buffington.The probate court denied a motion for summary judgment filed by the estate's executors, appellantsBeth Buffington Hood and Ginger Buffington Folger, by which they sought an adjudication as a matter of law that Todd was not a beneficiary under the testator's will.This Court granted appellants' application for interlocutory appeal, and, concluding that the probate court erred in finding a genuine issue of material fact regarding Todd's beneficiary status, we now reverse.

[O]n appeal from the denial ... of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.[Cits.]

Benton v. Benton,280 Ga. 468, 470, 629 S.E.2d 204(2006).So viewed, the undisputed evidence reflects that Buffington died in August 2006, leaving a will providing, in relevant part, for distribution of his personal and household effects to “[his] children surviving [Buffington]” and distribution of the residue of his estate to the Buffington Family Trust, under which “each then living child of [Buffington]” and “each deceased child of [Buffington] who shall leave issue then living” is to receive an equal share of the estate's entire residue, in trust.The term “children” is specifically defined in the will, in pertinent part, as “only the lawful blood descendants in the first degree of the parent designated.”An introductory portion of the will reads, “I have two living children, Beth Buffington Hood and Ginger Buffington Folger.”In addition to being named co-executors of the will, Hood and Folger are also each appointed as trustee of the respective residuary trust established for her benefit.No other trustees of any other potential trusts (other than a successor trustee) are named.

Todd claims to be Buffington's biological daughter, asserting that she was fathered during an extra-marital affair between Buffington and Todd's mother and that Buffington acknowledged her as his daughter during his life.As such, Todd claims that she is entitled to a child's share of Buffington's estate.Following the initiation of probate proceedings, Todd filed a separate action in superior court seeking a declaration of her beneficiary status under Buffington's will and related equitable relief.The superior court transferred that action to the probate court, and appellants then moved for summary judgment on the issue of Todd's beneficiary status, asserting that Buffington's will unambiguously evinced his intent to exclude Todd as a beneficiary.Finding the existence of genuine issues of material fact as to Todd's status under the will, the probate court denied the motion.

Though there may be a genuine issue of fact as to Todd's status as Buffington's daughter, we conclude that resolution of this issue is unnecessary in determining Todd's status under Buffington's will, as the will clearly and unambiguously expresses Buffington's intent that only Hood and Folger, the daughters born of his marriage, share as children thereunder.“In the construction of all wills, the court shall seek diligently for the intention of the testator and shall give effect to such intention as far as it may be consistent with the rules of law.”OCGA § 53-4-55.“The court must look first to the ‘four corners' of the will to discover that intent.[Cit.]”American Cancer Society v. Estate of Massell,258 Ga. 717, 718, 373 S.E.2d 741(1988).“Where the language of a will is clear ... and can be given legal effect as it stands, the court will not, by construction, give the will a different effect.[Cits.]”Seymour v. Presley,239 Ga. 572, 574-575(1), 238 S.E.2d 347(1977).

A testator may make any disposition of his property he chooses, so long as not contrary to law or public policy, even to the exclusion of his spouse and/or descendants.OCGA § 53-4-1.The testator need not expressly name an heir in his will in order to disinherit her, so long as the intent to disinherit is clearly expressed.Mary F. RadfordRedfearn Wills and Administration in Georgia,§ 7:6(15), at 316 (7th ed. 2008).“ ‘It is no proper concern of the court whether the disposition of one's property by will is wise or unwise, is justified or unjustified, so long as such disposition is legal and the intention of the testator is certain and clearly expressed by the terms of the will.’ ”(Citation omitted.)Folsom v. Rowell,281 Ga. 494, 498(2), 640 S.E.2d 5(2007).

Here, the plain terms of the will clearly reflect Buffington's intent to exclude Todd.Todd is not mentioned in any portion of the will, as contrasted with Hood and Folger, who are specifically designated as Buffington's “two living children,” are named co-executors, and are named as trustees of respective trusts created for each of them from the Buffington Family Trust.In addition, it is clear from the language creating the Family Trust that no other trusts were contemplated to be created therefrom, further illustrating Buffington's intent that only Hood and Folger be treated as his “children” for purposes of his will; the explicit provisions for the trusts for Hood and Folger reflect by negative implication that no trust was intended to be created for Todd.

Moreover, by defining the term “children” as “ lawful blood descendants,” Buffington also demonstrated his intent that his child born out of wedlock not be included as a beneficiary under his will.SeeIn re Estate of Wright,147 Wash.App. 674, 196 P.3d 1075(III)(2008)(use of phrase “lawful descendants” reflected testator's intent to exclude child born out of wedlock);Carey v. Jaynes,265 S.W.3d 801, 804(Ky.Ct.App.2008)(same with respect to phrase “lawful blood descendants”);Harris Trust and Savings Bank v. Donovan,145 Ill.2d 166, 163 Ill.Dec. 854, 582 N.E.2d 120, 124(1991)(same with respect to trust defining “children” and “descendants” as “only lawful blood children and descendants”);Presley v. Hanks,782 S.W.2d 482, 489-490(Tenn.Ct.App.1989)(same with respect to “lawful issue” and “lawful children”);Traders Bank of Kansas City v. Goulding,711 S.W.2d 872, 875(Mo.1986)(same with respect to “lawful issue”).But seeBell v. Forti,85 Md.App. 345, 584 A.2d 77, 81-82(1991)(finding genuine issue of material fact as to whether out of wedlock daughter fell within class of testator's “lawful descendants”).Indeed, to construe the term “children,”“defined in the will as ‘lawful descendants[,]’ ... as though [it was] instead defined simply as ‘descendants' would be to simply ignore the modifier, giving it no effect.”Estate of Wright,supra at 1081(III).As we are required in the construction of a will to give effect to all provisions therein Patterson v. Patterson,208 Ga. 17(1), 64 S.E.2d 585(1951), we are compelled to assign meaning to the term “lawful” and can only conclude that its use, particularly in combination with the other operative language of the will, reflects Buffington's intent to exclude Todd.

This is the case despite the evidence adduced by Todd that Buffington acknowledged that Todd was his daughter and even provided support for her during his lifetime, as it is undisputed that Buffington never took any steps to formally legitimate Todd and was even known to have referred to her as “little bastard.”In other words, though Buffington may have believed Todd to be his daughter in fact, it is clear that he did not believe that Todd was his child in the eyes of the law.Thus, Buffington's use of the phrase “lawful blood descendants” reflects a clear and conscious desire on his part to exclude Todd as a beneficiary under his will.¹

Similarly, Todd's effort to characterize the testamentary bequests as class gifts (i.e., to Buffington's “children”) rather than as individual gifts to Hood and Folger fails to alter her status under the will.Again, because the class of “children” in which Todd claims to fall is defined as Buffington's “lawful blood descendants,” Todd is explicitly excluded from taking as part of such class.

“We are mindful of the evolution in [the] law ... with respect to recognizing the rights of illegitimate descendants.However, this is not a case of intestacy, and [Buffington] was free to dispose of his property as he provided in his will.”Carey,supra, 265 S.W.3d at 804.Finding no genuine issues of material fact as to Todd's beneficiary status under Buffington's will, we conclude that the probate court erred in denying summary judgment to appellants and therefore reverse.

Judgment reversed.

All the Justices concur, except THOMPSON and HINES, JJ., who dissent.

HINES, Justice, dissenting.

I respectfully...