Morris v. Morris, A13A1885

• Docket Number: A14A0017,A13A1885
• Decision Date: 20 March 2014
• Court: Georgia Court of Appeals
• Parties: MORRIS v. MORRIS et al. MORRIS et al. v. MORRIS.

MORRIS
v.
MORRIS et al.
MORRIS et al.
v.
MORRIS.

A13A1885
A14A0017

Court of Appeals of Georgia

March 20, 2014

THIRD DIVISION

ANDREWS, P. J.,

DILLARD and MCMILLIAN, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk's office within ten days of the date of decision to be deemed timely filed.

Andrews, Presiding Judge.

Martha L. Morris, a resident of Georgia, is the sole surviving trustee of the Derek Morris Irrevocable Trust (the "Trust"). The Trust was created in Georgia by Martha's son Derek Morris as settlor in 1998¹ and has been located and managed in Georgia since that time. Derek funded the Trust with the proceeds of the settlement he received as a result of the litigation that ensued following a 1995 automobile collision in which he and other family members were seriously injured. Derek's 11-year-old sister lost her life.

Derek married his wife, appellee Sarah Morris, in 2004. The couple had one daughter, Iza Lily Morris, who was born while they were living in Atlanta. The couple moved to North Carolina in 2005. At the time of Derek's death, he and Sarah were estranged, and Sarah was living with her family in Georgia, but traveling back and forth to North Carolina. Unable to reach Iza Lily or her husband by telephone, Sarah returned to North Carolina. That afternoon she found Derek and Iza Lily in Iza Lily's bedroom in the couple's home. Both were dead from gunshot wounds fired by Derek first shooting Iza Lily then himself. Sarah was appointed the administrator of her decedent daughter's estate. In that capacity, she filed a wrongful death action against the Estate of Derek Morris which resulted in a default judgment in favor of the daughter's estate in an amount not of record.

In Case No. A13A1885, Martha as Trustee of the Trust, appeals from the trial court's order upon her verified petition for a declaratory judgment (the "Petition"). Therein Martha sought the trial court's guidance as to whether she should distribute the property of the Trust to Sarah as the administrator of Iza Lily's estate or to Martha's children (Derek's siblings), as beneficiaries pursuant to the terms of the Trust. On cross-motions for summary judgment, the trial court granted judgment to Sarah, declaring that North Carolina law required that the trust property be distributed to her as Administrator of Iza Lily's Estate and not to Derek's siblings. This was contrary to the terms of the Trust which, among other things, provided that the "Trust shall be governed by the laws of the State of Georgia[.]"

In Case No. A14A0017, Sarah appeals contending that the trial court erred by (i) allowing the Trustee to secure its judgment by a trustee's bond rather than a supersedeas bond, and (ii) taxing Iza Lily's estate as the beneficiary of the Trust with the expenses of a supersedeas bond.

The Trust as created inter vivos and its property as outside the Estate of Derek Morris and not subject to Sarah as a creditor in her capacity as administrator of Iza Lily's estate, we reverse in Case No. A13A1885. Given the foregoing, Sarah's motion to dismiss in Case No. A13A1885 is denied,² and Case No. A14A0017 is dismissed as moot.

In addition to selecting Georgia law as governing its interpretation, the Trust provides that upon Derek's death, the Trust property shall be distributed to any beneficiary Derek shall have appointed by his will. In the event of Derek's death intestate, the Trust provides that its property shall be distributed to Derek's living lineal descendants, if any. Absent any living lineal descendant, the Trust requires that its property be distributed equally to Derek's living siblings as named in the Trust,³ "with an equal share, per stirpes, for the living lineal descendants of any of them not then in life."

After Derek's death, the Trustee determined that the Trust assets should be distributed to Derek's living siblings because Derek died intestate, and his only lineal descendant, Iza Lily, predeceased him. Subsequently, however, the Trustee received a demand letter from counsel for Sarah opposing any distribution of the assets of the Trust until it could be confirmed that Derek had, in fact, died intestate not having exercised his power to appoint Sarah, his descendants or others as a beneficiary. The letter also informed Martha that "a cause of action for wrongful death would arise on behalf of [Sarah] . . . , the Trust as "an asset of [Derek's] estate . . . ." Following its hearing on cross-motions for summary judgment, the trial court entered judgment for Sarah, declaring that

Derek Morris shot and killed his only lineal descendant, Iza Lily Morris, then six years of age before shooting and killing himself. The killing took place in the [S]tate of North Carolina where Derek Morris, Sarah Morris and Iza Lily Morris had resided for over five years. Per the law in North Carolina (N.C.G.S.A. §28A-24-5),⁴ where . . . Derek Morris and Iza Lily Morris died, Iza Lily Morris did in fact survive her killer, Derek Morris[,] and as such was a surviving lineal descendant at the time of Derek Morris' death. As such,

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