Owens v. Citizens' & Southern Nat. Bank

• Decision Date: 11 July 1933
• Docket Number: Nos. 9257, 9291.,s. 9257, 9291.
• Citation: Owens v. Citizens' & Southern Nat. Bank, 177 Ga. 289, 170 S.E. 196 (Ga. 1933)
• Court: Georgia Supreme Court
• Parties: OWENS et al. v. CITIZENS' & SOUTHERN NAT. BANK et al. WARDENS AND VESTRYMEN OF ST. JOHN'S CHURCH. v. OWENS et al.

177 Ga. 289

170 S.E. 196

OWENS et al.

v.CITIZENS' & SOUTHERN NAT. BANK et al.

WARDENS AND VESTRYMEN OF ST. JOHN'S CHURCH.

v.OWENS et al.

Nos. 9257, 9291.

Supreme Court of Georgia.

July 11, 1933

Syllabus by the Court.

1. Legacies may be either general, spe-ciflc, or demonstrative. A specific legacy is one which operates on property particularly designated. A gift of money to be paid from a specified fund is nevertheless a general legacy.

2. "A demonstrative legacy is one which designates the fund or property from which it is to be satisfied, but is nevertheless an unconditional gift to the legatee of the amount or value specified. That it names a particular fund or other property from which it is to be satisfied is considered to be demonstrative of a convenient mode of payment; if that mode fails, the legacy is to be satisfied out of the general assets of the estate. A demonstrative legacy differs from a general legacy in that it does not, in the first instance, abate upon insufficiency of assets to pay the debts of the estate and the expenses of distribution; it differs from a specific legacy in that there is recourse for its payment from the general assets of the estate in the event of ademption in part or in whole."

3. In construing wills the cardinal rule of construction is the intention of the testator, to be arrived at from the four corners of the will itself and surrounding circumstances.

4. A testator bequeathed a named sum of money "in securities he held, in order to give an income to Agnes Heyward, my sister-in-law, who devoted twelve years of her life to the care of my deceased son. * * * Upon the death of Agnes Heyward, this sum, except as modified in paragraph 10, shall go unto St. Johns Church as an endowment." Item 10 of the will provided: "I want it so arranged that Nephew K. Clark shall receive a total of $30,000; and if at the time of my death there is a deficiency of funds, I direct that any shortage be made up, on the death of Agnes Heyward from the funds of $42,000 provided to give her an income during her life. The balance of the fund to go to St. Johns Church as an endowment on the conditions mentioned in clause 7."

(a) Construing together items 7 and 10 in the light of the entire will, to ascertain the intention of testator, the court did not err in holding that the legacy of $42,000 in securities to his sister-in-law should not abate; and also in holding that the securities set forth in item 7 should be held in trust for the benefit of the testator's sister-in-law during her life.

(b) Neither did the court err in holding that the $42,000 in securities should be held by the executors as of the market value at the time of the death of testator.

(c) The court did not err in holding, that, while there should be no pro rata abatement of the entire legacy of $30,000 to Clark, there should be an abatement pro rata on the legacy of $15,000 given to him in item 6 of the will, and any deficit should be made upon the death of Miss Heyward from the trust fund set forth in item 7 of the will, so as to make the total of $30,000 as provided in item 10.

5. There was no error in the other rulings of the court.

Error from Superior Court, Chatham County; Peter W. Meldrim, Judge.

Petition for the construction of the will of William W. Williamson by the Citizens' & Southern National Bank and another, as executors of the last will and testament of William W. Williamson, against Margaret W. Owens and others. To review the judgment, Margaret W. Owens and others bring error and defendant Wardens and Vestrymen of St. John's Church of Savannah files a crossbill of exceptions.

Affirmed on both main and cross-bills of exceptions.

The Citizens' & Southern National Bank and Nephew K. Clark, as executors of the last will and testament of William W. Williamson, brought a petition praying for construction of the will of William W. Williamson and direction thereunder, making parties defendant all of the interested legatees, to wit: Miss Margaret W. Owens, Mrs. Lizzie W. Munnerlyn, Mrs. George S. Haines, Miss Nina A. Pape, Miss Ruth S. Rankin, Miss Belle Daniel, Miss Agnes Heyward, Fred J. Howden, Nephew K. Clark, W. Duncan Owens, Young Men's Christian Association, Union Society, Episcopal Orphans' Home, and the Wardens and Vestrymen, of St. John's Church of Savannah. The petition alleges that there was not at the time of testator's death, and is not now, and will not be at the expiration of one year from the death of the testator, sufficient funds of the estate to pay all legacies in full. Item 6 of the will provides: "1 make the following bequests to those who are alive at the time of my death, $5,000 to each of them: Mrs. Lizzie Munnerlyn, Miss Margaret W. Owens, Mrs. George S. Haines, Dr. Wm. Duncan Owens, Miss Nina A. Pape, Miss Ruth Rankin. $2,500 to Miss Belle Daniel. $15,000 to my loyal friend, Nephew K. Clark." Item 7 provides: "I direct that $42,000 in securities be held in order to give an income to Agnes Heyward (my sister in law), who devoted twelve years of her life to the care of my deceased son, Wm. W. Williamson, Jr. Upon thedeath of Agnes Heyward this sum ($42,000), except as modified in paragraph ten shall go to St. John's Church as an endowment. * * *" Item 10 provides: "I want it so arranged that Nephew K. Clark shall receive a total of $30,000; and if at the time of my death there is a deficiency of funds, I direct that any shortage be made up on the death of Miss Agnes Heyward, from the fund of $42,000 in securities provided to give her an income during her lifetime; the balance of this fund to go to St. John's Church as an endowment on the condition mentioned in clause 7." Petitioners are in doubt as to the construction to be placed on item 7, in view of the fact that there are not sufficient funds to pay all the legatees in full, and desire instructions from the court. They also desire instruction as to whether the total legacy to Nephew K. Clark of $30,000 shall abate pro rata at the expiration of the year, and any deficit resulting at that time to be made up upon the death of Agnes Heyward from the trust fund provided in section 7, or shall the pro rata abatement at the expiration of the year be made only on the first $15,000, and any deficit resulting therefrom be made up from said trust fund upon the death of Agnes Heyward, together with the second $15,-000, making a total of $30,000 as provided in item 10? The prayers are for construction of the will and direction given on the following points: (a) Shall the bequest of $42,000 as set forth in item 7, providing a life estate for Miss Agnes Heyward, abate pro rata with other legacies? Or, shall the bequest of $42,000 in securities as set forth in item 7, providing a life estate for Miss Agnes Heyward, not abate pro rata, but be held in trust by the executors as trustees for the benefit of Miss Heyward during her lifetime? (b) Does $42,000 in securities to be held by the executors, as provided in item 7, mean securities of the market value of $42,000, or securities of the par value of $42,000? (c) Shall the $42,000 in securities as set forth in item 7 be held by the executors as a life estate for Agnes Heyward as of that value at the date of the testator's death? Or shall the said $42,000 in securities be held by the executors as of that value at the time of making distribution one year from the death of the testator? (d) Shall the entire legacy of $30,000 to Nephew K. Clark abate pro rata at the expiration of the year from the testator's death, and any deficit resulting be made up after Miss Agnes Heyward's death from the trust fund? Or shall the pro rata abatement on the legacy to Nephew K. Clark be made only on the first $15,000, as set forth in item 6, and any deficit resulting be made up upon the death of Agnes Heyward from the trust fund set forth in item 7, to make the total of $30,000, as provided in item 10?

The will of William W. Williamson is as follows:

"I, Wm. W. Williamson of Savannah, Ga., being of sound mind, make this my last will and testament.

"I. I appoint the Citizens & Southern National Bank of Savannah, Ga., in conjunction with my friend Nephew K. Clark, as my executors to carry out the provisions of this will.

"II. I direct that my debts be first paid.

"III. I direct that six thousand dollars ($0,000.00) be set aside to pay my funeral expenses to erect a monument to myself in my lot in Laurel Grove Cemetery, and to place the lot in perpetuity with the city adding a sufficient amount to have the iron railing the lot painted every second year. Any funds remaining to go into the general funds of the estate.

"IV. I direct that my residence, 509 Whit-aker St.. and its contents, except as provided in section IX clauses 1, 2, & 3, be turned over to St. Johns Church as a rectory, or to be rented or sold.

"V. I direct that forty-nine shares of the capital stock of the Chatham Coal & Coke Co. Inc., owned by me, be transferred to my friend Fred J. Howden of Savannah, Ga., and further that fifty-one hundred dollars ($5,-100.00) be paid him in cash.

"VI. I make the following bequests to those who are alive at the time of my death, five thousand dollars ($5,000.00) to each of them: Mrs. Lizzie W. Munnerlyn, Miss Margaret W. Owens, Mrs. George S. Haines, Dr. Wm. Duncan Owens, Miss Nina A. Pape, Miss Ruth S. Rankin. Twenty-five hundred dollars ($2,500.00) to Miss Belle Daniel. Fifteen thousand dollars ($15,000.00) to my loyal friend Nephew K. Clark.

"VII. I direct that forty-two thousand dollars ($42,000) in securities be held in order to give an income to Agnes Heyward (my sister in law), who devoted twelve years of her life to the care of my deceased son Wm. W. Williamson, Jr. Upon the death of Agnes Heyward this sum ($42,000.00), except as modified in paragraph ten, shall go to St. Johns Church as an endowment. If the Vestry of St. Johns Church should decide to buy or build a house or hall for Sunday-School or similar purposes, I...