McVay v. Anderson

• Decision Date: 22 September 1965
• Docket Number: No. 23113,23113
• Citation: 144 S.E.2d 741,221 Ga. 381
• Parties: Dorothy Blount McVAY et al. v. Charles R. ANDERSON et al.
• Court: Georgia Supreme Court

Page 741

144 S.E.2d 741

221 Ga. 381

Dorothy Blount McVAY et al. v. Charles R. ANDERSON et al.

No. 23113.

Supreme Court of Georgia.

Sept. 22, 1965.

Rehearing Denied Oct. 7, 1965.

Syllabus by the Court

Where by a trust indenture executed in 1935 the estate is given to four named persons at the death of the life tenant with a provision that if any one or more remaindermen predeceases the life tenant, the heirs of their body should take, and where the remaindermen executed an agreement in 1937 expressly making the 1935 indenture a part thereof, and providing that the property should go as provided in the 1935 indenture, this would control the disposition, and a clause in the 1937 agreement saying that the trustee should turn the property over at the death of the life tenant to four named persons who were the same four named in the indenture, created no conflict, and the 1935 indenture direction for distribution controls.

This is an action sounding in equity brought by a stakeholder, The Citizens & Southern National Bank as trustee, seeking the construction of a certain trust agreement and direction as to its actions as trustee. The interested parties responded thereto and this court is called on to determine whether the final decree of the lower court properly ordered distribution of the assets of the trust in the construction of an agreement by and between the parties settling their respective interests in the trust assets after the death of the life tenant, but made prior thereto. The lower court ruled in favor of an heir at law and legatee under the will of one of the deceased parties who had inherited by will from the other deceased remainderman and against the other two remaindermen, the other half of the assets of the trust not being in controversy. The exception is to this final judgment made upon stipulated facts.

Harris, Russell & Watkins, John B. Harris, Jr., Macon, for plaintiffs in error.

Anderson, Walker & Reichert, William C. Turpin, R. Lanier Anderson, Jr., Macon, for defendants in error.

DUCKWORTH, Chief Justice.

Exceedingly capable counsel on both sides have reduced this otherwise complicated case to a sharp focus upon the decisive questions involved. That beneficiaries can agree amongst themselves to a distribution different from that in the trust instrument or will, and such an agreement is valid and binding upon all parties thereto is settled law. Hatcher v. Cade, 55 Ga. 359; Bailey v. Ross, 66 Ga. 354; 57 Am.Jur. 653, Wills, § 1005-1009. See also on the subject of the law favoring family settlements, Code § 20-1205; Folds v. Folds, 187 Ga. 463, 466, 1 S.E.2d 4; Cagle v. Justus, 196 Ga. 826, 28 S.E.2d 255. It is also settled law that such parties by their agreement bind themselves thereto as well as those claiming under them. Of course, if minors had an interest the agreement of the adults would not bind them. But where as here any interest of minors is based upon previous agreements of the adults, that interest is controlled by the agreement of the same adults, see Josey v. Rogers, 13 Ga. 478; Hatcher v. Cade, supra; Watkins v. Gilmore, 130 Ga. 797, 62 S.E. 32. Such beneficiary agreements do not alter the will as forbidden by Mercier v. Mercier, 50 Ga. 546, but are a modification of the rights of such beneficiaries under the will. 57 Am.Jur. 653, § 1005, supra.

We agree with counsel for defendant in error that if the beneficiary agreement dated October 1, 1937, stood alone its explicit direction that after the death of Miss Fanny Blount, the trustee 'shall turn over and deliver' the remaining corpus (one-half not in controversy) the other half to be equally divided among Mrs. Joseph Blount, Mrs. McVay, Mrs. Bricker and Mrs. Anderson, would vest absolutely the respective interest in the named person which would go to their estates if they predeceased the life tenant. In that situation Wilbur v. McNulty, 75 Ga. 458; Green v. Driver, 143 Ga. 134, 84 S.E. 552; Ragan v. Rogers, 146 Ga. 818, 92 S.E. 647; and McDougald v. Kennedy, 203 Ga. 144, 45 S.E.2d 654, would control and demand that conclusion. But such are not the facts of this case, for the 1937 agreement expressly made the 1935 trust indenture a part thereof. Thereby the relevant portion of the 1935 indenture was as effectually made a part of the 1937 agreement as if it had been copied therein. The 1935 indenture as to this one-half of the estate provides that after the death of the life tenant, this remaining half shall be paid 'to the family of my son Joseph H. Blount, to-wit: Mrs. Joseph G. Blount, Mrs. Lamar Washington (now Mrs. Dorothy Blount McVay), Mrs. Lee K. Fargo and Mrs. Eugenia Frances Blount Anderson.' By the record it is shown that these four are the same four persons named in the 1937 agreement. 'In case of death of any one or more of these remaindermen, I desire that the portion which would have gone to such deceased person shall go to the heirs of the body of such person.' The 1937 agreement attached and made a part thereof the 1935 indenture and expressly stated that the remainder after the death of the life tenant should go 'as set out in the trust agreement of July 26, 1935.' Counsel for the defendant in error claim to find a conflict in the 1937 agreement where it directs the trustee upon the death of the life tenant to turn over and deliver this one-half remainder to four named persons, and the 1935 indenture which gives it to the same persons if in life, and to the heirs of their bodies if deceased. And they invoke the principle of construction that general and unlimited terms in an instrument are limited by specific recitals. Torrance v. McDougald, 12 Ga. 526; Ross v. Jones, 151 Ga. 425, 107 S.E. 160; McCann v. Glynn Lumber Co., 199 Ga. 669, 34 S.E.2d 839; Mayor etc., of Savannah v. Savannah Elec. & Power Co., 205 Ga. 429, 54 S.E.2d 260; Central Ga., etc., Corp. v. Georgia Power Co., 217 Ga. 171, 121 S.E.2d 644. While counsel for plaintiff in error invoke the rule that where there are contradictory clauses the former must prevail, (Code § 29-109), we find ourselves disagreeing with both counsel, because the provisions for disposition of the property are in conformity, hence there is no conflict. Had the parties thereto desired or intended that the 1937 agreement...