Opinion
33606.
DECIDED NOVEMBER 15, 1951.
Appeal; from Pickens Superior Court — Judge Brooke. January 2, 1951.
Henderson Burtz, Pickett Pickett, James H. Therrell, for plaintiffs.
Tye, Thomson Tye, H. G. Vandiviere, H. L. Buffington Jr., for defendants.
1. In a narrow sense the word "legatee" means one to whom personal property is bequeathed by a will, but in the popular or broader sense, and where no contrary intent appears in the will, it is applied by the courts of this State as meaning one to whom property, either real or personal, is given under a will.
( a) All of the persons to whom any property was given under the will in the present case were legatees, and, under a provision that in case of vacancy in the office of executor a successor executor should be selected by a "majority of my legatees" of age at the time, all of the beneficiaries under the will were entitled, as legatees, to vote per capita.
( b) Six votes having been cast for a grandson of the testator and six votes having been cast for a named bank, both of whom were qualified to serve as successor executor, and the surviving next of kin, three children of the testator, being among those voting for the grandson, the judgment of the judge of the superior court, acting without the aid of a jury by agreement, on appeal from the court of ordinary, in deciding the issue in favor of the grandson will not be disturbed.
DECIDED NOVEMBER 15, 1951.
The present case, which involved the selection of a successor executor to replace one resigning because of ill health, was transferred to this court by the Supreme Court in an opinion holding that the construction of the will of the testator was only incidentally involved. The facts were as follows: S.C. Tate executed his last will and testament on March 13, 1897, and it was later probated in Pickens County, Georgia. On September 5, 1949, Lucius E. Tate, as sole surviving executor of the testator's estate, filed in the Court of Ordinary of Pickens County his application for leave to resign as such because of ill health. The will provided in Item 14: "If from death, removal or any other cause the office or trust of executorship shall become vacant, I will that a majority of my legatees of age at that time select an executor to carry out the purposes of this will." The will, in Item 2, bequeathed the testator's personal property to his ten named children. In Item 3 it was provided: "I give, devise and bequeath to my said children [naming them] all of my real estate for and during their natural lives, said real estate to be kept together and managed by my executors hereinafter appointed, and my said children shall have use, and enjoy all the rents, profits, issues, royalty and income arising from said real estate without limitation or remainder, except as hereinafter expressed. That part of my real estate situated without the limits of Pickens County, my said executors are hereby authorized to sell at private or public sale, as in their judgment may be to the best interest of my estate, without being required to obtain an order from the Court of Ordinary for that purpose, to execute and deliver deeds of conveyance to the purchaser, and to make distribution of the proceeds arising from such sale after paying costs and expenses incident thereto equally among my said children named in this item, it being my desire and intention that all that portion of my real estate situated in Pickens County be kept together and managed by my executors for the benefit of my said children during the life of each and all of them, and that the profits arising therefrom be equally divided among my said children then in life and the issue of such of my children as may be then deceased, leaving issue, said issue to receive such part as the parent would have received if then in life; and if no issue of such children is then in life or being between or among the surviving children." In Item 4 it was provided: "It is my will and desire that when the life estate of my said children shall have terminated upon the death of each and all of my said children, all of my real estate situated in Pickens County, and all that part of my said real estate not situated within the limits of said Pickens County that may not have been disposed of as provided for in `Item Third' of this will be equally divided among the issue of my children then in being, said issue to receive such part of said real estate as my deceased child or children, from whom said issue shall have sprung, would have been titled in the division of my personal property as provided in `Item Second' of this will."
A citation was issued and served upon the beneficiaries of the will, giving them notice of the sole surviving executor's resignation, and calling upon them to make in writing their selection of a successor executor on or before the first Monday in October, 1949, and in the citation it was stated "at which time an executor will be appointed pursuant to the terms of said will." The hearing was postponed to April 4, 1950, and at or prior to the hearing, written selections were made and filed with the ordinary. The three surviving children of the testator and the three children of a deceased son, all of whom were beneficiaries under the terms of the testator's will, voted for Steve C. Tate to be the successor executor. Among those so voting were Lucius E. Tate, a son of the testator and the resigning executor, and Steve C. Tate, a grandson of the testator and the suggested successor executor. The descendants of two other deceased children of the testator and beneficiaries under his will, to wit, three grandchildren and three great grandchildren, voted for Citizens Southern National Bank to be the successor executor. More specifically, these were: (a) a grandchild, Sarah Hinton Shiver, who was a daughter of Emma Tate Hinton, a daughter of the testator; (b) two grandchildren, Alexandria Florence Anderson and Venita Anderson Therrell, daughters of Venita Tate Anderson, a daughter of the testator; (c) three great grandchildren, Charles T. Darnell, Luke J. Darnell and Mrs. Grace Darnell Baskin, children of Charles T. Darnell Sr., son of Mollie E. Tate Darnell, daughter of the testator. It will thus be seen that the first group cast six votes for Steve C. Tate and the second group cast six votes for the bank. On the date of the deferred hearing, the ordinary passed an order accepting the resignation of Lucius E. Tate and found that Steve C. Tate "has been selected executor of the will of S.C. Tate, deceased, in the manner provided by such will, and he is authorized to qualify as such." Luke J. Darnell, a grandson of the testator, describing himself as "the caveator and objector, and one of the respondents," appealed from such judgment to the Superior Court of Pickens County. Later an intervention was filed in that court by three of the testator's grandchildren and two of his great grandchildren who had voted for the bank as successor executor. In so far as material here their intervention alleged in substance: The intervenor and the caveator Darnell had cast their votes at the hearing before the ordinary for the bank to be the successor executor. They are beneficiaries under the will of S.C. Tate, deceased, because of the death of respective kin primarily entitled but now deceased. After quoting from Item 14 of the testator's will as hereinbefore set forth, it was alleged as follows: Neither the previous executor, Lucius E. Tate, nor his suggested successor, Steve C. Tate, was entitled to vote in the selection. If the votes of those voting for the bank are entitled to be counted per capita their selection of an executor should prevail or there is a tie, and consequently no selection has been made and it is the duty of the court on appeal to determine: (a) Whether or not a vacancy exists in the office of the executorship under the terms of the will; (b) if a vacancy exists, what constitutes a majority of the legatees under the will; and (c) if there should be a tie vote, and consequently no selection of an executor, then the court should exercise a sound discretion in naming an executor because of the concurrent jurisdiction of the court of ordinary and the superior court in such matters. The sole prayer was that the intervention be allowed. The appellant, Luke J. Darnell, amended his original response by making substantially the same allegations as were made in the intervention, and prayed only for the allowance of the amendment. A written stipulation between the parties was filed in the superior court. It recited that S.C. Tate died testate, and a certified copy of his will was attached. The three surviving children and the deceased children of the testator were named, and the names of the several grandchildren and great grandchildren were set out, their respective relation to the testator being shown. It was agreed that all persons claiming an interest in the estate of S.C. Tate were sui juris, and that Lucius E. Tate is the sole surviving executor of the four originally named as such in the will of S.C. Tate. The written selections of an executor, as previously made before the ordinary, were introduced in evidence. Also introduced in evidence were paragraphs 34, 35 and 36 of the plaintiff's petition in Luke J. Darnell et al. v. Luke E. Tate et al., No. 580 in Pickens Superior Court, wherein the plaintiff sought to enjoin the defendants from selecting a successor to Luke E. Tate, executor. These paragraphs quoted the aforesaid provisions of Item 14 of the will concerning the selection of an executor in case of a vacancy and alleged that there were four possible interpretations of the provision, namely (a) limit the right to vote to living children of the testator; (b) give each living child a vote per stirpes; (c) give each recipient of income from the testator's estate a vote per capita; and (d) exclude from voting any legatee who had made a transfer of his interest. The case was submitted to the trial judge without the aid of a jury and the following judgment was entered: "The court, by agreement of counsel sitting as both judge and jury and after hearing evidence and argument, decides all issues in favor of Luke E. Tate, appellee." A motion for new trial was made on the usual general grounds and by amendment a special ground was added. The motion as amended was overruled, and the respondent and the intervenors excepted.
The Supreme Court of Georgia, in dealing with a general demurrer in the present litigation ( Darnell v. Tate, 206 Ga. 576, 586, 58 S.E.2d, 160), said: "Under the provisions of Code §§ 113-1101 and 113-2306, the court of ordinary has jurisdiction to accept the resignation of an executor and to appoint a successor according to the manner provided for in the will. The selection of a successor executor does not involve a construction of the will, and the item of the will providing for the manner of appointing a successor is plain and unambiguous, and within the jurisdiction of the court of ordinary." The court declined to render a declaratory judgment. Nevertheless, after proceedings to select a successor executor, the parties here express different views as to the proper interpretation of the testator's declaration as to the selection of such a successor, in case of a vacancy, by "a majority of my legatees of age at that time." Twelve of the fourteen person receiving benefits under the will cast votes for a successor executor. Did a "majority of my legatees," who were of age at the time, vote? The plaintiffs in error contend that each of the recipients of property under the will is a "legatee", and a tie having resulted it would be inequitable to permit the vote of the resigning executor to be counted, and, therefore, the bank should have been declared selected.
The defendants in error contend that since the three surviving children are the only ones who took personal property under the will they are the only legatees of the testator and the only persons entitled to vote for a successor executor. They also contend that if each recipient of property, whether personal or real, is to be considered a legatee, only the three surviving children would each have a full vote, and that those taking through one primarily entitled would only vote per stirpes. Thus they assert that Steve C. Tate, Sam Tate and Mrs. L. O. Benton, children of Walter E. Tate (a deceased child) would together have only one vote. In this view Steve C. Tate received four full votes, since the three surviving children and the above mentioned grandchildren voted for him. They further contend that Sarah Hinton Shiver, daughter of Emma Tate Hinton (deceased daughter of the testator) would have one full vote; that Alexandria Florence Anderson and Venita Anderson Therrell, daughters of Venita Tate Anderson (deceased daughter) would together have only one full vote; and that Charles T. Darnell, Luke (Lucius) J. Darnell and Mrs. Grace Darnell Baskin, children of Charles T. Darnell Sr., deceased, son of Mollie E. Tate Darnell (deceased daughter) would have only one full vote. In this view the bank received only three full votes and Steve C. Tate was properly chosen by the ordinary and the judge of the superior court acting without the aid of a jury by agreement. They further contend that even if each of the twelve persons who voted had a full vote, then a tie resulted, and the judgment of the ordinary and of the judge of the superior court in favor of Steve C. Tate, for whom the three surviving children, the next of kin voted, was correct.
Whether or not the contentions of the defendants in error as to the surviving children alone being entitled to a full vote each, the other beneficiaries voting per stirpes, might be upheld in another situation, such as in intestacy, it is unnecessary to decide, as we are here dealing with testacy and the express provisions of a will as to the manner in which a successor executor shall be selected. The testator has by his will made persons other than his children, his next of kin, beneficiaries in case of the death of child or children, and it is clear that at the time of the selection of a successor executor several such persons were entitled to take under the will. Since, therefore, the will provided that such successor should be named by a "majority of my legatees" of age when a vacancy should arise, it becomes necessary to determine who were such legatees.
In a narrow sense a legatee is one to whom personal property is given by a will, but in its popular or broader sense a legatee is one who is a beneficiary of either personal or real property under a will. Redfearn on Wills and Administration of Estates (Rev. ed.), p. 220. Unless a contrary intent appears, the word "legatee," when used in a will, is treated as being used in the popular or broader sense. Lallerstedt v. Jennings, 23 Ga. 571. See also Yopp v. Atlantic Coast Line R. Co., 148 Ga. 539, 541 ( 97 S.E. 534). We, therefore, hold that each person to whom any property, real or personal, was given under the will of S.C. Tate was a legatee. We further hold that each legatee, without regard to the nearness of his relationship to the testator, was entitled to a full vote in the selection of a successor executor under the provision of the will that he should be named by a "majority of my legatees" of age at the time. Such prescribed method of selection has reference to a majority by number, and not by the quantum of interest of each. In other words, each legatee should vote per capita, and no particular class of issue per stirpes.
The voting having resulted in a tie under the above-mentioned formula, the selection of a successor executor should not fail, but should be decided by the court as we shall now demonstrate. The Code, § 113-1101, provides: "All the provisions of this Code with reference to administrators of estates, prescribing . . the mode . . of resigning . . and in all other matters in their nature applicable to executors, shall be held and taken to apply to and include executors to the same extent as if they were named therein." In Gormley v. Watson, 177 Ga. 763, 766 ( 171 S.E. 280), it was specifically ruled that the provisions of the Code, § 113-2306, relating to the resignation of administrators, were made applicable to executors by the Code, § 113-1101, above quoted in part. In paragraph 4 of § 113-1202, setting forth rules for granting letters of administration, their selection, and as to preferences in naming them, the applicant being of sound mind and laboring under no disability, about which no issue is raised in the present case, it is provided: "If no such preference shall be expressed, the ordinary may exercise his discretion in selecting the one best qualified for the office." In Jackson v. Jackson, 101 Ga. 132 (1) ( 28 S.E. 608), it was held: "This being a contest between two brothers for letters of administration upon the estate of their deceased father, tried in the superior court upon an appeal from the court of ordinary, and the evidence being such as to authorize a finding in favor of either, the selection to be made was purely a matter for determination by the jury." In the opinion it was recited that there were five heirs at law, sons and daughters of the intestate, and that two voted for one of the applicants and two voted for the other, the remaining heir at law being a lunatic and not voting. It was said by the court that since there was no selection by a majority of those interested as distributees of the estate, it was the right of the jury, on appeal to the superior court, to select the one they deemed best qualified, in accordance with the provisions of the statute, now § 113-1202 (4), and that there was no abuse of discretion as the evidence would have authorized the selection of either contestant. In principle, therefore, and under the Code, §§ 113-1101, 113-2306 and 113-1202 (4) and the cases above mentioned, where there exists a tie in the votes for successor executor as here, and the judge of the superior court, acting without the aid of a jury, decides, as did the ordinary, in favor of Steve C. Tate as against the bank, and there is no issue as to his fitness, such judgment must be affirmed.
The contention of the plaintiffs in error that the resigning executor, a surviving child of the testator, was disqualified from voting is without merit. No authority is cited in support of the argument, and we apprehend none can be found. Although he was the executor under the will of his father, he was nevertheless a legatee, and there is nothing in the will which even remotely suggests that he should not be allowed to vote for a successor executor.
Judgment affirmed. Sutton, C. J., concurs. Felton, J., concurs specially.
I concur in the judgment and in the first division of the opinion. I do not concur in the reason given for affirming the judgment of the lower court. The judgment of the lower court, in my opinion, means that the court found that a majority of the "legatees", as he defined the word, voted for Luke E. Tate as successor executor. If I am correct in this, the court did not exercise discretion in the appointment and the appointment cannot be logically affirmed on that ground. However, since no point is made on the propriety of the appointment of an executor as successor, instead of an administrator with the will annexed, under the rule of law applying to the selection of an administrator, only the children would have been entitled to vote in such election ( Dawson v. Shave, 162 Ga. 126, 132 S.E. 912), and since the children voted unanimously for the appointee, the appointment should be approved, since, under the facts of this case, there is no material difference between an executor and an administrator with the will annexed.