Linkous v. National Bank of Georgia

• Decision Date: 10 February 1981
• Docket Number: Nos. 37024,37025,s. 37024
• Parties: LINKOUS, Gdn. v. The NATIONAL BANK OF GEORGIA, Exr.
• Court: Georgia Supreme Court

Page 469

274 S.E.2d 469

247 Ga. 274

LINKOUS, Gdn. v. The NATIONAL BANK OF GEORGIA, Exr.

Nos. 37024, 37025.

Supreme Court of Georgia.

Feb. 10, 1981.

Certiorari Denied April 22,1981.

Powell, Goldstein, Frazer & Murphy, Atlanta, for Linkous, Gdn.

Ronald W. Hartley, Smith, Cohen, Ringel, Kohler & Martin, James H. Morgan, Hurt, Richardson, Garner, Todd & Cadenhead, Joseph C. Miller, Rogers & Hardin, John A. Nix, Northcutt, Edwards, Germano, Nix & Page, Atlanta, Nelson T. Levings, Jr., Palos Park, Ill., George Edward Levings, III, Boca Raton, Fla., Roberta Shaw Thomas, Alexandria, Va., Robert H. Shaw, Jr., Bay St. Louis, Miss., Alpha Gamma Foundation, c/o Russ Johnson, Secretary-Treasurer, Sanford Levings, Jr., Jackson, Miss., Sally Crosby Levings, Carrow, N. C., Sanford H. Levings, Jackson, Miss., Nelson T. Levings, III, Clarklake, Mich., for National Bank of Georgia, Exr.

UNDERCOFLER, Justice.

In this case, we are called upon to examine the validity of an "in terrorem" clause forbidding any challenge to a will under penalty of forfeiture. Such clauses are permitted by statute, Code Ann. § 113-820, but are not favored in the law and, like all restrictions, must be strictly construed, Boykin v. Bradley, 192 Ga. 212, 14 S.E.2d 734 (1941). The trial court held the clause in this will invalid. We affirm.

National Bank of Georgia, as executor and trustee under the will of Nelson T. Levings, filed its petition for a declaratory judgment as to certain aspects of the will not now here before us. Guardians ad litem were appointed to represent various groups of heirs. When the trial court made the initial determination that the in terrorem clause was invalid, those guardians interested in its enforcement appealed.

Code Ann. § 113-820 provides: "A condition in terrorem shall be void, unless there is a limitation over to some other person; in which event the latter shall take...." (Emphasis supplied.) Article Sixteenth of Levings' will contains the following: "If any beneficiary under this, my will, shall in any manner, directly or indirectly attempt to contest or oppose the probate or validity of this, my will, or any codicil thereto, in any court, or commence or prosecute any legal proceedings of any kind in any court to set aside this, my will, or any codicil thereto, then in that event such beneficiary shall forfeit and cease to have any right or interest whatsoever under this, my will, or under any codicil hereto, or in any portion of my estate and, in such event, I hereby direct that my property and estate shall be disposed of in all respects as if such beneficiary had predeceased me." (Emphasis supplied.) Appellants contend that this article contains a specific limitation over such that the in terrorem clause must be upheld. We disagree.

In Broach v. Hester, 217 Ga. 59, 62, 121 S.E.2d 111 (1961), we quoted 96 C.J.S. Wills § 992: " 'A condition in terrorem will be sustained where the will especially directs that the share of the person violating the condition shall fall into the residue; but a mere general gift of the residue, or a gift over to the testator's estate, is not such a gift over as will take the case out of the operation of the foregoing rule as to conditions in terrorem, although there is some authority to the contrary. A general residuary clause is not of itself regarded as a substitute for, or as the equivalent of, a gift over; and a gift to heirs may not be a gift...