Summary
In Gibson, the Court held that by making a provision for the payment of his debts, the testator had in effect directed that the debts be paid out of the gross estate rather than out of the residuum.
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27768.
ARGUED MARCH 12, 1973.
DECIDED MAY 10, 1973.
Construction of will. Muscogee Superior Court. Before Judge Smith.
Henson Waldrep, Kenneth M. Henson, Joseph L. Waldrep, Jack O. Morse, for appellant.
William B. Hardegree, Hatcher, Stubbs, Land, Hollis Rothschild, James Humes, for appellees.
The trial judge properly construed the will as providing for all debts to be paid from the gross estate instead of the residuum.
ARGUED MARCH 12, 1973 — DECIDED MAY 10, 1973.
Dr. Roy L. Gibson died testate on February 19, 1971, and his will was duly probated. It includes the following:
ITEM TWO
"I desire that all of my just and honest debts be paid as soon as practical after my death, consistent with the best interest of my estate. The word `debts' as used herein shall include, but not be limited to, all Federal Estate taxes, all State inheritance taxes, all income taxes, all ad valorem taxes and all other taxes of every kind and character that are, or might be, due by me at the time of my death and that might be due by my estate, all my funeral expenses, medical expenses, hospital expenses and all other expenses and debts incurred in my behalf, the costs of administering my estate, all indebtedness against any of my property, or interest therein, no matter whether evidenced by promissory notes or not and no matter whether secured or unsecured, all church and charitable pledges remaining unpaid at the time of my death, and all other debts of every kind and character due by me at the time of my death or by my estate.
ITEM THREE
"I give and bequeath my Father's portrait and all equipment, appliances, fixtures and furnishings related to my practice of medicine and located in my office at the time of my death to my nephew, William Roy McWhirter, to be his, absolutely in fee simple.
ITEM FOUR
"I give and bequeath to my wife, Mrs. Francis Lummus Gibson, all automobiles, household furniture, furnishings, equipment, appliances, crockery, china, silverware, glassware, cut glass, objects of art, portraits (except the one of my Father hereinbefore given in Item Three), my wearing apparel and personal effects owned and possessed by me at the time of my death, to be hers, absolutely in fee simple.
ITEM FIVE
"I give, bequeath and devise to my wife, Mrs. Frances Lummus Gibson, one-half (1/2) of all my property and estate of every kind and character, real, personal, mixed, tangible, intangible, reversionary and otherwise, wheresoever located, including all lapsed or void legacies or devises and including all property over which I have the power of appointment or disposition, to be hers, absolutely in fee simple.
"It is my intentions that this Item of my said Last Will and Testament shall qualify as a marital deduction as defined under the United States Internal Revenue Code as is now in force and effect, and the executrices, hereinafter named, shall, in dividing and distributing my property and estate, allot to my said wife, under this Item of my said Last Will and Testament, only such property as shall qualify as a part of the marital deduction under the Federal estate tax laws. Also, said executrices, hereinafter named, shall in determining and arriving at the said `one-half' interest given, bequeathed and devised to my said wife take into consideration all proceeds from life insurance, which qualify as a part of the marital deduction, on my life, owned by me at the time of my death and payable directly to my said wife.
ITEM SIX
"I give, bequeath and devise all the rest, remainder and residue of my property and estate of every kind and character, real, personal, mixed, tangible, intangible, reversionary and otherwise, wheresoever located, including all lapsed and void legacies or devises and including all property over which I have the power of appointment or disposition, to my sisters, Mrs. Merle Gibson McWhirter and Mrs. Grace Gibson Sherman, to be theirs, share and share alike, absolutely in fee simple."
Mrs. Merle Gibson McWhirter, individually and as co-executrix, and Mrs. Grace Gibson Sherman, sisters of the deceased, instituted an action thereafter against the widow, Mrs. Frances Lummus Gibson, individually and as co-executrix, seeking to cancel certain conveyances made in settlement of the estate. The defendant asserted the following in a counterclaim.
13.
"Defendant shows that a dispute exists between the co-executrices with regard to the amounts of said estate which the several beneficiaries named in items five and six are entitled. Defendant avers that she is entitled to receive as a proper distribution under item five one-half (1/2) of the total estate of the said Roy L. Gibson undiminished by any debts, taxes, bequests and other obligations of said estate, and that the residuary beneficiaries designated in item six are entitled to the remainder of said estate after the payment of all debts, taxes, bequests and other obligations of said estate. Co-plaintiffs contend that the bequest in Item Five to petitioner is chargeable with one-half (1/2) of all debts, taxes, and other obligations of said estate. In light of this dispute, it is necessary that the will of Roy L. Gibson be construed by a court of equity so as to provide for the proper distribution under said Will and to effectuate the proper administration and payment of debts and other obligations of said estate.
14.
"Defendant shows that she is entitled to a year's support as provided for in Sections 113-1002 et seq. of the Code of Georgia and that application for same will be made subsequent to the filing of this answer and counterclaim.
15.
"Defendant shows that it was testator's clear intention that the bequest to defendant in item five qualify as a marital deduction bequest under Section 2056 of the Internal Revenue Code, that testator's taxable estate is reduced by the amount of said bequest, and that it would be grossly inequitable for defendant individually to be burdened with the payment of estate taxes on property which did not contribute to estate tax liability."
An order of the trial judge construes the will as follows:
"(a) It was the intention of the testator as clearly and unambiguously expressed in his will, that all debts of the testator as defined in item two of the aforesaid will be paid out of the gross estate prior to the distribution of any legacies so that the widow devisee named in Item Five of the will share pro rata in the payment of said debts with the residuary legatees named in Item Six of the will and so that after the payment of said debts and the specific legacies provided for in Items Three and Four of the will the remainder of the estate of the testator is to be divided equally between the widow devisee in Item Five of the will and the residuary legatees named in Item Six of the will.
"(b) Construing Items Two and Five with all other provisions of the will the testator directed that his debts and the debts, claims and expenses of the estate, including federal and state estate, inheritance and succession taxes, be paid in the manner aforesaid; I find that Georgia Code Section 113-821 has no application;
"(c) The will of Roy L. Gibson, deceased, is clear and unambiguous and parol or extrinsic evidence of the testator's intent is inadmissible;
"(d) There is no provision in the will intended by the testator to be in lieu of year's support for the widow."
The widow appeals the foregoing order, asserting error on (1) the construction placed on the will, (2) the determination that Code § 113-821 has no application, (3) the denial of a motion for summary judgment, and (4) the denial of a motion for a hearing on defenses and judgment on the pleadings.
1. Inasmuch as Division 3 of this opinion, infra, supports a judgment of affirmance, no ruling is made or required on any issue of whether the appeal is subject to dismissal as premature or not involving a properly certified interlocutory order. See City of Hawkinsville v. Williams, 185 Ga. 396 (1) ( 195 S.E. 162); Littlegreen v. Gardner, 208 Ga. 523 (1) ( 67 S.E.2d 713); Hunter v. Ogletree, 212 Ga. 543, 544 ( 93 S.E.2d 717); Johnston v. Clayton County Water Authority, 222 Ga. 39 (4) ( 148 S.E.2d 417); Hodges v. Thibadeau, 122 Ga. App. 334 (2) ( 177 S.E.2d 127).
2. It is unnecessary to consider the third and fourth enumerations, the appellant having conceded by brief that the only issue for determination is the construction of the will.
3. In determining whether the trial judge properly construed the will we note at the outset that the appellant and the appellees are in agreement in their briefs that the trial judge properly ruled that the terms of the will are clear and unambiguous, and that the will should be construed without reference to parol or extrinsic evidence. We agree with this position. This leaves as the controlling issue resolution of the contention of the appellant that the trial judge misconstrued the will, in that the testator intended that his widow should receive one-half of the gross estate under Item Five without deduction for the payment of debts as provided in Item Two or the specific legacies in Items Three and Four.
In an early case Judge Lumpkin stated: "Here, then, I repeat, are parts of the instrument which, if they stood alone, would seem clearly to sustain either construction which is sought to be put upon it. It becomes our duty then, to seek, through the whole paper, for the testator's intention, and to carry that intention into effect, provided it can be done without violating any rule of law. And I will here take occasion to remark, that [it] is in vain to look at the books for precedents to aid us in arriving at a correct conclusion as to the intention of the testator. This duty must be performed by every court for itself, in each particular case." Cook v. Weaver, 12 Ga. 47, 50. "The intention of the testator must govern the construction of his will, if legal; and this intention may be conclusively shown by the unambiguous words of his will." Hertz v. Abrahams, 110 Ga. 707, 708 ( 36 S.E. 409, 50 LRA 361). "Precedents or decisions of other courts are of but little value and of dangerous application in the determination of the testator's intent in a particular will." Hungerford v. Trust Co. of Ga., 190 Ga. 387, 389 ( 9 S.E.2d 630). "In construing the provisions of an item of a will, the whole instrument should be examined. . . [T]he intention of the testator is the controlling consideration, and his intention must be ascertained by taking the will, as it is said, `by the four corners,' and giving to all parts of it consideration." Yerbey v. Chandler, 194 Ga. 263, 265 ( 21 S.E.2d 636). Viewing the whole of a will a later provision will prevail over an earlier provision only if the two provisions are irreconcilable. Rigdon v. Cooper, 203 Ga. 547 ( 47 S.E.2d 633).
We think it is clear that the testator, in providing for disposition of the residuum to his sisters in Item Six had already "otherwise directed" the payment of his debts under the provisions of Item Two, thereby excluding application of the provisions of Code Ann. § 113-821 for payment out of the residuum unless otherwise directed. Viewing Items Two through Six together we find nothing irreconcilable in respect to any later provision over any earlier provision. By Item Two, having already provided for his burial in Item One, he made clear that in settling and disposing of his estate he wanted all debts paid "as soon as practical, consistent with the best interest of his estate," and then proceeded to define "debts" in the broadest possible language, first specifically to include all manner of usual and ordinary debts and expenses pertaining to the settlement of an estate, and then generally with a "catch-all" provision for "all other debts of every kind and character due by me at the time of my death or by my estate." About the only thing he did not do, if there were a need, was to state specifically that his debts were to be paid from his gross estate and not from the residuum, but this would, in our opinion, be stating the obvious, for the statute, supra, provides that debts are paid out of the residuum unless otherwise directed. If he intended for his debts to be paid out of the residuum, then Item Two is wholly unnecessary and could have been omitted from the will.
Further viewing the whole, i.e., Items Two through Six, we think it is clear that the testator directed his co-executrices to pay his debts as the first order of business in disposing of his estate, recognizing and protecting, of course, the specific legacies in Items Three and Four, leaving for distribution under Item Five one-half of all remaining property to his widow, but only to the extent that the property would qualify as a marital deduction under federal law, the remaining one-half to be distributed to his two sisters under Item Six. In brief, as we view the will, and as construed by the trial judge, the widow under Item Five and the two sisters together under Item Six are to receive equal shares of the estate, provided everything the widow receives thereunder qualifies for a marital deduction.
Judgment affirmed. All the Justices concur.