May v. Citizens and Southern Bank of LaGrange

• Decision Date: 21 September 1967
• Docket Number: No. 24265,24265
• Parties: Lola Andrews MAY et al. v. CITIZENS & SOUTHERN BANK OF LaGRANGE, Executor et al.
• Court: Georgia Supreme Court

Page 279

157 S.E.2d 279

223 Ga. 614

Lola Andrews MAY et al. v. CITIZENS & SOUTHERN BANK OF LaGRANGE, Executor et al.

No. 24265.

Supreme Court of Georgia.

Sept. 21, 1967.

James E. Weldon, LaGrange, Peek, Whaley, Blackburn & Haldi, William H. Whaley, Glenville Haldi, Atlanta, for appellants.

Richter & Birdsong, Horace E. Richter, Wyatt & Wyatt, LaGrange, for appellees.

Syllabus Opinion by the Court

UNDERCOFLER, Justice.

The Citizens & Southern Bank of LaGrange, Ga., as executor under the will of Mrs. Ida Lou Andrews Winn, brought a declaratory judgment action against the devisees and heirs of said testatrix and also the devisees and heirs of Frank Winn, deceased, to determine whether said testatrix exercised a power of appointment given to her under the will of Frank Winn.

Frank Winn's will was executed in 1956 and in connection with certain trust property provided: 'Upon the death of my said wife (Mrs. Ida Lou Andrews Winn), any property in this trust estate remaining in the hands of the Trustee shall be distributed by the Trustee, free from the trust, to such persons and in such manner as my said wife may by her Last Will and Testament direct or appoint, including the right in my wife to appoint said property to her estate. Should my said wife fail to so direct or appoint, then said property remaining in the hands of the Trustee shall go over to and become a part of the residue of my estate and be held and distributed as provided in Item V hereof in all respects as if it had originally been a part of said residue.' Mrs. Ida Lou Andrews Winn's will executed in 1964 makes no specific reference to this power of appointment but bequeaths part of her 'net estate' to the plaintiff in trust and contains an item giving 'all of the rest, residue and remainder of my property of every type, kind and description including lapsed legacies, of which I die possessed or entitled as follows:'

The trial court held that Mrs. Winn failed to exercise the power of appointment granted to her in her husband's will and the appeal is from this judgment and the rulings made relative to other procedural matters. Held:

1. 'The donee of a power may execute it without expressly referring to it, or taking any notice of it, provided that it is apparent from the whole instrument that it was intended as an execution of the power. The execution of the power, however, must show that it was intended to be such execution; for if it is uncertain whether the act was intended to...