Trammell v. Elliott

Decision Date02 July 1973
Docket NumberNo. 27849,27849
Citation230 Ga. 841,199 S.E.2d 194
PartiesPhedorah Boyd TRAMMELL v. Edwin Boyd ELLIOTT et al.
CourtGeorgia Supreme Court

R. John Genins, Atlanta, for appellant.

Dan E. Conaughey, Decatur, John A. Nix, Lokey & Bowden, Alston, Miller &amp Gaines, Robert G. Edge, Ann W. MacLean, Arthur K. Bolton, Atty. Gen., Timothy J. Sweeney, H. Andrew Owen, Jr., Asst. Attys. Gen., Atlanta, for appellees.

Syllabus Opinion by the Court

HAWES, Justice.

The appeal here is from an order of the Superior Court of DeKalb County entered on motion for summary judgment in a case brought by the executor of the estate of Miss Clem Boyd seeking construction of her will and direction from the court.

1. The appeal is not subject to dismissal. Appellees contend that the order appealed from is not an appealable one since the trial court denied appellant's motion for a summary judgment. The order appealed from, though it denied appellant's motion for a summary judgment, went further and granted summary judgment favorable to appellees as to several issues in the case. It is thus subject to direct appeal (Code Ann. § 81A-156(h)), and 'all judgments, rulings or orders rendered in the case which are raised on appeal, and which may affect' the case upon remand are subject to review by this court. Code Ann. § 6-701(b).

2. The trial court did not err in ruling that there is a genuine issue of fact as to whether Angie Boyd Hansen, the appellant's testatrix, renounced her interest under the will of Clem Boyd. The will here in question was executed by Miss Boyd on March 10, 1962. The testatrix died on April 6, 1962.

(a) Angie Boyd Hansen, on January 22, 1963, executed a 'Conditional Renunciation' in which she conditioned her renunciation on her not having a lingering illness after all her funds had been exhausted and that she not have an accident or illness or inability to care for herself which would send her to a hospital or nursing home whereby her own cash would be exhausted and she would be thereby rendered dependent on others. The only contention of appellant with respect to this purported renunciation is that it is too conditional to constitute a valid and binding renunciation. No authority is cited by appellant for this position and we are not aware of any rule of law or of any public policy which would forbid the enforcement of such attempted renouncement. The issue as to this attempted renouncement is simply whether in fact Mrs. Hansen's funds subsequently became exhausted and whether she thereby became dependent on others by reason thereof. This factual issue was properly left by the court for decision by a jury.

(b) In October, 1964, Angie Boyd Hansen executed a purported will containing a further renouncement. It appears that that instrument has been declared to be void by reason of lack of mental capacity on the part of Angie Boyd Hansen at the time it was executed. What effect, if any, this attempted renouncement has in view of that ruling it is not necessary for us to decide at this time.

(c) On June 28, 1965, Angie Boyd Hansen unconditionally and in the presence of three witnesses and a notary public again executed in writing a renouncement. The legal effect of this instrument may depend on her mental capacity at the time or upon other issues of fact. It follows that the first ground of enumerated error shows no cause for reversal.

3. By Item XI of her will, the testatrix authorized her executors therein named 'to sell, at private sale, my real property located at corner of Mr. Perrian Road and 'Four-Lane' Highway to Marietta from Atlanta, N.W., such sale to be made after said property is zoned for business and at such time a fair price can be obtained therefor. Should they receive an equivalent price before it is zoned for business, they still may sell at private sale, but I prefer waiting for the more advantageous time after it is zoned for business or motel, or club. Said executors are authorized to sell this or any of my property-real or personal-at private sale without Order of Court, and without advertisement.' The petitioner alleged in Count 3 of the complaint that the property referred to in this item is substantially surrounded by single family residences and that the possibility that it can be zoned for business is very slight and that under the conditions prevailing the sale of the properly at private sale can bring the best price. In ruling on the executor's plea for direction with respect to this item the trial court did not err in holding that the executor could sell the property therein referred to at private sale 'if he in his discretion determines a private sale will be more advantageous to the estate.'

4. 'The natural and reasonable presumption is that a testator in executing a will intends to dispose of his whole estate and not to die intestate as to any part of it, and this presumption is overcome only where the intention to do otherwise is clear and unambiguous or is necessarily implied. Armstrong v. Merts, 202 Ga. 483(4), 43 S.E.2d 512; Schriber v. Anderson, 205 Ga. 343, 53 S.E.2d 490.' Lewis v. Mitchell, 216 Ga. 526(1), 117 S.E.2d 901. Accordingly, where, as in this case, the testatrix devised in the residuary clause, Item X of her will, 'all funds remaining after the aforementioned bequests are made or set aside' to be applied to certain purposes, the use by her of the word 'funds' was properly held to have been in the generic sense, for otherwise, as to some of the remaining assets, an intestacy would have resulted had any narrower construction been given that term. See Bivins v. State, 47 Ga.App. 391, 392, 170 S.E. 513. Under the facts of this case, the construction of this item of the will was for the court and not for a jury. Watts v. Finley, 187 Ga. 629(5), 1 S.E.2d 723; Armstrong v. Merts, 202 Ga. 483(1), 43 S.E.2d 512; Collier v. Citizens & Southern National Bank, 206 Ga. 857, 59 S.E.2d 385.

5. We now approach the central issue of this appeal. In Item X of the will of Clem Boyd, there is recorded the desire that an educational scholarship fund be established in memory of the deceased's parents. This provision is, in its entirety, as follows: 'All funds remaining after the aforementioned bequests are made or set aside, I wish made into an Endowment or Scholarship Fund in memory of my parents, the late William and Frances McCord Boyd, of Newton County, Georgia, said fund to be known as the Boyd-McCord Memorial Scholarship and placed with the Trustees of the Georgia Institute of Technology, Emory University, and Agnes Scott College, in equal proportions, to manage and keep reports on same. This scholarship is set aside for benefit of deserving and qualified poor white boys and girls, and interest only is to be used for said scholarships. However, should any proven descendant of my parents qualify and apply for benefits of this scholarship, it is my desire that they be given preference, and, if need be, go into the principal to the amount of $500.00 per scholastic year of four years for said descendant if earnestness is indicated and courses taken leading to a degree.' (Emphasis supplied.) Although two of the named universities to act as trustees of the funds are private institutions, the Attorney General representing the Board of Regents of the University System of Georgia has conceded the requisite state interest with regard to the trust administration on behalf on the Georgia Institute of Technology. We proceed, therefore, on the basis that there is sufficient state action involved to invoke the strictures of the Fourteenth Amendment of the United States Constitution and that the racial restrictions in the devise may not be enforced save in violation of equal protection of law. Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966); Pennsylvania v. Board of Directors of City Trust, 353 U.S. 230, 77 S.Ct. 806, 1 L.Ed.2d 792 (1957). See, also, Sweet Briar Institute v. Button, 280 F.Supp. 312 (W.D Va.1967). The single issue before the court with regard to the devise is whether the trial court erred in applying the doctrine of cy pres to exclude the offensive and discriminatory...

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