Lamb v. NATIONSBANK, NA, No. S98A1261

Decision Date23 November 1998
Docket Number No. S98A1261, No. S98A1264., No. S98A1262
Citation507 S.E.2d 457,270 Ga. 388
PartiesLAMB v. NATIONSBANK, N.A. (Two Cases) FREDLUND v. NATIONSBANK, N.A.
CourtGeorgia Supreme Court

OPINION TEXT STARTS HERE

Julian R. Friedman, Terri Martin Yates, Lee Alton Summerford, Oliver, Maner & Gray, LLP, Savannah, John M. Comolli, McLanahan & Comolli, Athens, for appellants.

Paul W. Painter, Jr., Ellis, Painter, Ratterree & Bart, LLP, Mills Lane Morrison, Roland B. Williams, Hunter, Maclean, Exley & Dunn, P.C., Savannah, G. Conley Ingram, John C. Sawyer, Robert Davis McCallum, Jr., Alston & Bird, LLP, Atlanta, for NationsBank, N.A., et al.

Doris Cubbedge Seyle, Regina Cubbedge, Victoria Cubbage Kennickell, Maude Cubbedge New, Savannah, Mary Jenkins Winders, Reston, VA, Jacqueline C. Ulmer, Jr., Catherine C. Ulmer, Sarah C. Snow, Bluffton, SC, William R. Quarterman, Jr., Charleston, SC, Mary Mangum, Durham, NC, for other interested parties.

HINES, Justice.

This is an appeal from a decision of the Probate Court of Chatham County in an action for declaratory judgment brought by NationsBank, N.A. to determine the beneficiaries of a trust established under the Last Will and Testament of Herschel V. Jenkins.1 The will was executed in 1955, approximately five years before Jenkins died. The portion of the will in controversy is Item III.(4.) which provides:

Upon the death of my last surviving daughter, the corpus of my estate is to be divided into two (2) equal parts, one of the parts to be immediately paid over and delivered to my nieces and nephews then living. In the event of the death of any of my nieces and nephews leaving children, the share of the parent shall be paid over and delivered to such children or their legal guardians. In the event at the time of the distribution herein before provided for, any of my nieces and nephews are indebted to me or to my estate, the amount of such indebtedness shall be deducted from the share which would go to such niece or nephew, or to his or her children.

The probate court found that the trust was intended to be distributed to a class consisting of the testator's nieces and nephews, or their children, living at the death of the testator's last surviving daughter, Victoria Jenkins, who died on July 4, 1997. Deceased children of a deceased niece or nephew, and their estates, were determined not to have rights in the trust. We agree that the will provision contains this condition of survivorship, and affirm.2

1. Appellants contend that the probate court's construction of the will provision is contrary to Georgia law which favors the early vesting of remainders and constitutes a rewriting of the will in contravention of the testator's express intent. But the contentions are without merit.

It is clear that the law favors the vesting of remainders in all cases of doubt. OCGA § 44-6-66;3 Lemmons v. Lawson, 266 Ga. 571, 573(1), 468 S.E.2d 749 (1996), citing Patterson v. Patterson, 208 Ga. 17(1), 64 S.E.2d 585 (1951). However, in this case, as in others, "in which the discussion proceeds as if the problem were merely whether the remainder is vested or contingent, the real question involved is simply whether there is a requirement that a certain devisee must survive until his interest becomes possessory; it being conceded that he has not so survived." Johnson v. Wishard, 227 Ga. 355, 356(1), 180 S.E.2d 738 (1971). Here, the will provision at issue requires that the takers be living at the time of distribution, which is at the death of the testator's last surviving daughter. It explicitly states that the corpus of the trust is to be immediately paid over and delivered to nieces and nephews then living. Thus, it begins with an express condition of survivorship. That this survivorship requirement continues is evident from the testator's very specific language. In the event of the death of a niece or nephew leaving children the share of the parent is to be paid over and delivered to their children or legal guardians. It does not provide that the parent's share be paid to the parent's estate or heirs or to the children's estate or heirs or to grandchildren or issue or descendants or to any enlarged or more general group of recipients. The popular and legal sense of the word children ordinarily includes only the first generation of offspring, and in the absence of a showing that a larger signification is intended, the courts will not find that other descendants are included. Trust Company Bank v. Heyward, 240 Ga. 557, 564(3), 242 S.E.2d 257 (1978). Also, the will directs that the share of the parent is at that time to be paid over and delivered to the children or their legal guardians, and it follows that a person must be living in order to have something paid over or delivered to him. What is more, the reference to legal guardians demonstrates that the testator contemplated that the children would be in life.

The testator's intent that the children, i.e., the grandnieces and grandnephews, also be living at the time of distribution in order to take the parent's share is further evident by looking to the will as a whole and by scrutinizing every phrase that it contains. Patterson v. Patterson, 208 Ga. at 20(1), 64 S.E.2d 585. Careful examination of the will in its entirety reveals two striking features supporting the finding that survivorship at the time of distribution is required: The testator's scheme to ultimately control the disposition of the trust assets and the testator's manifest intent that his estate benefit only those persons and entities known and dear to him and over which he had some manner of influence.

The testamentary scheme evidences the clear intent for the testator, who was a prominent Savannah businessman, to retain control of the corpus of the trust. The testator gave his own daughters only life estates and permitted them to encroach upon the corpus to the limited extent of $40,000. He also provided for payments to his sisters in the amount of $150.00 per month,...

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4 cases
  • Cross v. Stokes
    • United States
    • Georgia Supreme Court
    • November 12, 2002
    ...e.g., Delbello v. Bilyeu, 274 Ga. 776, 560 S.E.2d 3 (2002); Emmertz v. Cherry, 271 Ga. 458, 520 S.E.2d 219 (1999); Lamb v. NationsBank, 270 Ga. 388, 507 S.E.2d 457 (1998). See also Simon v. Bunch, 260 Ga. 201, n. 1, 391 S.E.2d 648 (1990); Wausau Ins. Co. v. King, 191 Ga.App. 329(1), 381 S.E......
  • DeHart v. Liberty Mut. Ins. Co., S98Q0715.
    • United States
    • Georgia Supreme Court
    • December 4, 1998
  • Bryant v. State
    • United States
    • Georgia Supreme Court
    • November 23, 1998
  • Swanson v. Swanson, S98A1615.
    • United States
    • Georgia Supreme Court
    • March 19, 1999
    ...testator but predeceased life tenant). 15. 266 Ga. 571, 468 S.E.2d 749 (1996) 16. See note 10, supra. 17. Compare Lamb v. NationsBank, 270 Ga. 388, 507 S.E.2d 457 (1998) (remainder "upon the death of [the life beneficiary]" to "then living" nieces and nephews imposed condition that remainde......
1 books & journal articles
  • Wills, Trusts & Administration of Estates - Mary F. Radford
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 51-1, September 1999
    • Invalid date
    ...intent on the part of the testator with respect to acceleration of the remainder interests." 270 Ga. at 286, 508 S.E.2d at 659. 19. 270 Ga. 388, 507 S.E.2d 457 (1998). 20. Id. at 388-89, 507 S.E.2d at 458. 21. Id. at 389 n.2, 507 S.E.2d at 458 n.2. 22. Id. at 389, 507 S.E.2d at 458. 23. Id.......

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