LeCraw v. LeCraw, S90A1570
| Decision Date | 13 March 1991 |
| Docket Number | No. S90A1570,S90A1570 |
| Citation | 261 Ga. 98,401 S.E.2d 697 |
| Parties | LeCRAW et al., Exrs. v. LeCRAW et al. |
| Court | Georgia Supreme Court |
Joseph Lefkoff, Douglas W. Duncan, Lefkoff, Duncan, Grimes & Dermer, Atlanta, for C. Veazey LeCraw et al.
M.T. Simmons, Jr., Simmons, Warren & Szczecko, James E. Spence, Jr., Decatur, for Spencer LeCraw et al.
make deposits to and to make withdrawals from any accounts [she] might now or hereafter have with banks ... including but not limited to checking accounts, savings accounts ...
and
To do any other thing or perform any other act, not limited to the foregoing, which I might do in person, it being intended that this shall be a general power of attorney.
The trial court found that, by making the gifts, the attorneys-in-fact were continuing Mrs. LeCraw's pattern of gifts to the recipients and were taking sound steps to minimize the transfer tax liability on Mrs. LeCraw's estate. 2 The trial court also found that Mrs. LeCraw was informed by her administrative assistant of the pending gifts while the checks were being prepared by the assistant, that Mrs. LeCraw voiced no objection, and that she accepted the thanks of several of the gift recipients. In addition, the trial court found that Mrs. LeCraw was competent to and did review her business affairs on a daily basis, and that she understood estate and gift tax planning, having consulted with legal counsel on such matters. After acknowledging the dearth of Georgia authority on the matter, the trial court determined that the power of attorney executed by Mrs. LeCraw authorized the gifts made by the attorneys-in-fact. We agree.
"[A] formal power of attorney is subject to a strict construction," and "general terms in it are restricted to consistency with the controlling purpose, and will not extend the authority so as to add new and distinct powers different from the special powers expressly delegated" [cits.], yet ... "the agent's authority shall be construed to include all necessary and usual means for effectually executing it." [Johnson v. Johnson, 184 Ga. 783, 193 SE 345 (1937).]
In addition, ascertainment of the intent of the parties plays an important role in the construction of a power of attorney, as it does in construing any contract. Flake v Fulton Nat. Bank of Atlanta, 146 Ga.App. 40, 42, 245 S.E.2d 330 (1978). Where, as here, the grantor of the power of attorney expresses in that document the desires that her business be transacted by her attorneys-in-fact and that the power of attorney be a general power, and the evidence is undisputed that the actions taken by the attorneys-in-fact, unobjected to by the grantor, continue the grantor's practice of giving monetary gifts to the natural objects of her bounty and affection; that the exercise of the power to make gratuitous transfers by the attorneys-in-fact does not deplete the grantor of the assets necessary for her to live her accustomed life-style; and that the exercise of the power to make gifts to the natural objects of her bounty minimizes the estate transfer tax, a goal the grantor desired, we construe the general power of attorney executed by the grantor to include within it the power to make gratuitous transfers of property to the natural objects of the grantor's bounty.
Citing Harrison v. Harrison, 214 Ga. 393, 105 S.E.2d 214 (1958); Thompson v. Thompson, 190 Ga. 264, 9 S.E.2d 80 (1940); State Hwy. Bd. v. Price, 174 Ga. 143, 162 S.E. 283 (1932); and Taylor v. Phillips, 147 Ga. 761, 95 S.E. 289 (1918), appellants assert that this court has ruled that Georgia law prohibits attorneys-in-fact from making gifts of the grantor's property under any circumstances. None of those cases contains such a holding. The ruling in each case was based on its facts, and none of the cases involving gratuitous transfers had, as we have here, evidence of the grantor's history for gift-giving; of the grantor's awareness of and apparent acquiescence to the gift-giving; and that the recipients of the gifts were the natural objects of the grantor's bounty. Therefore, none of those cases controls here.
Judgment affirmed.
All the Justices concur, except WELTNER, HUNT and FLETCHER, JJ., who dissent.
The major problem with this case is that the plaintiffs, who are also defendants, exercised a power of attorney to give themselves money belonging to their principal. As executors of their deceased mother's estate, C. Veazey LeCraw, C. Buck LeCraw, and Julian LeCraw brought the present action seeking a declaratory judgment and certain equitable relief against C. Veazey LeCraw, C. Buck LeCraw, and Julian LeCraw, individually, as well as thirty-eight other individuals. 1
During her lifetime, the decedent executed at least two identical formal powers of attorney naming appellants as her attorneys-in-fact. One of these powers of attorney is dated March 27, 1980 and it is the 1980 power of attorney which is referred to in the complaint and is attached thereto as an exhibit. The other power of attorney is dated May 8, 1985 and it is the 1985 power of attorney which was introduced into evidence at the hearing below.
While entitled "general power of attorney", the document is a detailed three page instrument containing six paragraphs of specific and detailed powers granted by the decedent, followed by a paragraph containing the following standard general language:
To do any other thing or perform any other act, not limited to the foregoing, which I might do in person, it being intended that this shall be a general power of attorney.
The record does not reflect any acts being performed by the attorneys-in-fact under the 1980 instrument and reflects no acts performed under the May, 1985 instrument until approximately four months prior to grantor/principal's death on April 23, 1986.
The trial court heard testimony from only two persons: C. Veazey LeCraw, an executor and...
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