Trust Co. Bank v. Heyward
| Decision Date | 20 January 1978 |
| Docket Number | Nos. 32677,s. 32677 |
| Citation | 242 S.E.2d 257,240 Ga. 557 |
| Parties | TRUST COMPANY BANK, Executor v. Mildred Goodrum HEYWARD et al. FIRST NATIONAL BANK OF ALTANTA, Executor v. Mildred Goodrum HEYWARD et al. TRUST COMPANY BANK, Co-Executor v. Mildred Goodrum HEYWARD et al. Alonzo M. NORRIS, III, et al. v. TRUST COMPANY BANK et al. to 32680. |
| Court | Georgia Supreme Court |
King & Spalding, John A. Wallace, Henry L. Bowden, Jr., L. Joseph Loveland, Atlanta, for appellant (case no. 32677).
Sanders, Mottola, Haugen & Goodson, Willis G. Haugen, Newnan, for appellant (case no. 32678).
Horton & Crim, William W. Horton, Hurt, Richardson, Garner, Todd & Cadenhead, Charles D. Hurt, Jr., Paul M. Talmadge, Jr., Atlanta, Mathews, Knight, Jones & MacNabb, Byron H. Mathews, Jr., Newnan, for cross-appellants, Verner F. Chaffin, Athens, of counsel to cross-appellants (case no. 32680).
Hurt, Richardson, Garner, Todd & Cadenhead, Charles D. Hurt, Jr., Paul M. Talmadge, Jr., Atlanta, Mathews, Knight, Jones & MacNabb, Byron H. Mathews, Jr., Newnan, Horton & Crim, William W. Horton, Horack, Talley, Horack, Talley, Pharr & Lowndes, Benjamin S. Horack, Charlotte, N.C., Ulmer, Murchison, Ashby & Ball, Clarence G. Ashby, Jacksonville, Fla., for Heyward et al., appellees, Verner F. Chaffin, Athens, of counsel to appellees.
Hansell, Post, Brandon & Dorsey, John H. Boman, Jr., Edward S. Grenwald, R. Neal Manners, Mitchell, Clarke, Pate & Anderson, Thomas Hal Clarke, Jr., King & Spalding, Henry L. Bowden, Jr., John Al Wallace, Joseph B. Haynes, Atlanta, for Trust Company Bank et al.
Alston, Miller & Gaines, Robert Edge, Jeffrey P. Adams, Atlanta, for class representative.
The trustee under the will of James J. Goodrum, Jr., who died in 1928, sought construction, directions, and declaratory judgment with regard to items five (B)(5) and six of the testator's will. Twenty prospective beneficiaries and one representative of potential beneficiaries are parties. The trial judge construed both provisions and ordered distribution. These appeals are brought by two executors and a co-executor of three estates which were found by the trial court to have no interest under the disputed item five (B)(5), and by Alonzo M. Norris, III, and sixteen other parties who disagree with the award of fees to the trustee under item six.
The testator was a vice president of the Trust Company of Georgia (now the Trust Company Bank) who amassed a sizable estate, primarily in common stocks. For earlier litigation, see Armistead v. Trust Co. of Ga., 180 Ga. 148, 177 S.E. 787 (1934). His will established a trust of most of his estate. Income from three-fifths of the trust property was to be paid to the testator's wife. The testator had no children. His brother and three sisters predeceased his wife, who died in 1976. Item five (B)(5) of the will applies in these circumstances 1 and directs the following distribution (each of the sentences in this item is numbered for later reference): It is the sentence numbered 3 above which is at the center of this controversy. In construing that sentence it should be kept in mind that the intent of the testator is to be found in this item and the will as a whole as well as in this sentence.
One sister, Mary, died without children or other descendants. The three other siblings died with children surviving them and with no child predeceasing the parent.
The brother was survived by three children. One is a party to this litigation, and two predeceased the testator's wife. Their estates are parties, and each had two children who also are parties.
The two other sisters were each survived by two children, all of whom predeceased the testator's wife. Their estates are parties. One had no children. Two had two children each, who are parties. The fourth child of these sisters had two children. One child is a party. The other predeceased the testator's wife and was survived by his two children. His estate and the two children are parties.
The trial judge found that the testator intended that each remainderman survive the testator's wife. He found that the fourth sentence of item five (B)(5) directs distribution of Mary's presumptive share to the descendants per stirpes, who were living at the death of the testator's wife. The judge found that in the third sentence, the testator's use of the words "child or children" and "per stirpes" created an ambiguity which is capable of construction. He found that the testator intended that the one-fourth share of each deceased sibling be distributed per stirpes to the sibling's descendants who survived the testator's wife.
1. The executor of the estate of a nephew of the testator contends that the trial judge erred in finding that the testator intended in the last two sentences of item five (B)(5) of the will that each remainderman survive the testator's wife. This nephew died without descendants in 1958, having survived his parent, a sister of the testator. A similar view is urged by the corporate co-executor of the estate of another nephew of the testator. This co-executor contends that the trial judge erred in finding that interests of a deceased nephew under sentences three and four of item five (B)(5) were divested in favor of his descendants who were living at the time of distribution. The nephew died in 1975, predeceasing the testator's wife. His two children are in life, and were found by the trial court to receive an interest directly under the testator's will, thus precluding that interest from passing through the estate of their father, as urged by the co-executor.
The trial judge scrutinized the entire will and found that a condition of survivorship to the time of distribution is manifest. He considered the provisions regarding the testator's brother and sisters in the first two sentences of item five (B)(5) which require that each survive the testator's wife in order to receive an interest in the trust property. We find that the testator did not intend his wife or his brother and sisters to control the disposition of the trust property at all. In addition we find five other instances of the testator's denial of posthumous control to a descendant who did not survive to the time of distribution. In item five (A)(3) prospective children of his sister Mary are required to be "surviving her" in order to receive an interest at her death. In item five (A)(5) the testator would not have allowed his own children, had he been so blessed, to posthumously control an interest in his estate. He required them to survive his wife, regardless of what age a child might attain before her death. Similar exclusions from posthumous control are found in item five (B)(2).
Review of the entire will also reveals the testator's general intent that a deceased remainderman's children surviving at distribution would have taken the parent's interest. In item five (A)(4) the testator directed, "Descendant's of deceased children to take per stirpes the share of their parent." By this provision the interest of a deceased child or descendant would pass to his living descendants by reason of his death before the time of distribution. In items five (A)(3), five (A)(5), five (B)(2) and five (B)(3) we find similar provisions which would pass interests in children, nieces, nephews and their descendants to the living descendants by reason of death before time of distribution.
The trial judge found that the testator intended remaindermen under the third sentence of item five (B)(5) to survive his wife. The testator began item five (B)(5), "Upon the death of my beloved wife . . ." and continued by directing that the life interest of his wife be awarded to his brother and sisters, and that as "each of said beneficiaries dies to divide among his or her children surviving" the sibling's share. This sequence of directions indicates that the testator contemplated the remaindermen survive both their parent and the testator's wife in order to receive an interest, and no interest remained for a descendant who predeceased either of these persons. Because of these directions and because of the testator's prior, consistent imposition of conditions of survivorship to the time of distribution, we hold that the trial judge was correct in finding that the testator intended the remaindermen in the third sentence to survive the testator's wife in order to "take per stirpes a one-fourth share. . . ."
The trial judge found that the testator intended survivorship of his widow by the remaindermen under the last sentence of item five (B)(5), which provides that the presumptive share of a sibling who has no descendants shall be distributed to "surviving brother and sisters and descendants of deceased brother and sisters, the latter to take per stirpes the share of their parent." It is clear from the first two sentences of item five (B)(5) that any distribution under sentence four could occur only after the death of the testator's wife. Therefore, sentence...
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