Opinion
17598.
ARGUED SEPTEMBER 12, 1951.
DECIDED OCTOBER 10, 1951.
Construction of will. Before Judge Shaw. Fulton Superior Court. July 6, 1951.
Hewlett, Dennis, Bowden Barton, for plaintiff in error.
Moise, Post Gardner, Gambrell, Harlan Barwick, James C. Hill, W. D. Thomson, and M. Cook Barwick, contra.
1. The motion of the plaintiff in error to amend the bill of exceptions in this case by designating by name and making The First National Bank of Atlanta, as executor and as trustee under the will of Dr. Horace Grant, a party defendant in error, is granted, it appearing that such party was duly served with the bill of exceptions and this motion, and consents to being made a party defendant in error.
2. Where a testator bequeaths a certain fund to a trustee, providing that the trustee shall manage, invest, sell, exchange, and reinvest the fund, and pay a stated amount therefrom each month to "A" during her lifetime, and at the death of "A" the balance of the fund, if any, shall be divided between "B" and "C" (children of "A"), and in the next succeeding paragraph of the will provides that, if "B" or "C" does not live until the time for payment to him, leaving children surviving him, then such children of "B" and "C" as survive the parent shall take the parent's share — the remainder interest of "B" and "C" in the trust fund is a defeasible vested interest, subject to be divested by their death without children before the death of "A"; the contingent remainder interest of the children of "B" and "C", with the resulting uncertainty of remaindermen, and the power vested in the trustee to manage, invest, sell, exchange, and reinvest the trust fund, constitute a valid subsisting executory trust; and the legal title to the corpus of the trust fund remains in the trustee during the life of "A" to keep the corpus secure for the remaindermen, to ascertain who they would be, and to distribute the fund among them when they are ascertained on the happening of the contingencies contemplated by the testator. A conveyance by "B" and "C", assigning their interest in the trust fund to "A", would not bring about such a merger of interests in the fund in "A" as would cut off any interest of the children of "B" and "C".
No. 17598. ARGUED SEPTEMBER 12, 1951 — DECIDED OCTOBER 10, 1951.
Dr. Horace Grant departed this life in 1936, leaving a will which was duly probated, naming The First National Bank of Atlanta and another (since deceased) as executors and trustees, the bank now acting as sole executor and trustee, with full power conferred by the will upon the executor and trustee to administer the estate in such manner as to carry out the provisions of the will, including the power to sell, exchange, or dispose of any part or all of the property held by it, at public or private sale, for cash or on terms, without notice or advertisement, to enter into lease contracts, and that, in making disposition of the estate, the executor and trustee "shall have the right to make division in kind or in money, or partly in kind and partly in money," and with the power to invest in real estate. Item 13 of the will directs the executors to pay to the testator's daughter, Mrs. Charlotte J. Love, $200 per month "until such time as my estate may be closed." Items 17 and 18 of the will are as follows:
(17) "If and when my grandson, David Love, shall become thirty-five years of age, or would, if living, have attained said age, I will and direct that my executors shall pay to my son-in-law, Joseph Love, the sum of One Thousand Dollars ($1,000.00) in cash, and all of the balance and residue of my estate shall then be divided into three equal shares, one share going to my grandson, David Love, one share going to my granddaughter, Lydia Jean Love, and the other share to the First National Bank of Atlanta and Alvin L. Richards, as trustees, in trust, nevertheless, for my daughter, Mrs. Charlotte J. Love, and my said trustees shall continue the allowance of Two Hundred Dollars ($200.00) per month for and during her natural life, and at her death any balance or residue of the share of said estate bequeathed to her shall be divided equally between my grandson, David Love, and my granddaughter, Lydia Jean Love."
(18) "Should any member of my family herein named as legatees, to wit: my daughter, Mrs. Charlotte J. Love, my son-in-law, Joseph Love, my grandson, David Love, or my granddaughter, Lydia Jean Love, die before the time named for paying to them the various legacies herein provided, then the legacy shall lapse, and the amount bequeathed to said deceased person shall become a part of my estate, except that should my said grandson, or said granddaughter, die and leave children surviving them, the share of the deceased parent shall be divided equally among his or her children."
It appears that the testator's grandson, David Love, attained the age of 35 years on October 15, 1950, and that on November 8, 1943, he and the testator's granddaughter, Lydia Jean Love McManus, both of whom were then of age, executed an instrument transferring, conveying, and assigning to their mother, Mrs. Charlotte J. Love, the plaintiff in error, all of their interests, both vested and in remainder, in and to the then undivided one-third interest in the residue of the estate of the testator bequeathed to the trustees under item 17 of the will. Mrs. Charlotte J. Love contends that, by virtue of this transfer, both the beneficial interest for life and the remainder interest in this one-third of the residue of the estate bequeathed to the trustees under item 17 of the will are now vested or merged in her; that she is of full age and capacity; and that the trust has now become executed, and she is entitled to receive from the trustee this one-third of the residue of the estate. The bank and the children of David Love and Lydia Jean Love McManus contend that, under items 17 and 18 of the will, construed together, the trust is an executory one, which the trustee is entitled to retain until the death of the life beneficiary, in order that it may then be ascertained to whom the remainder interest created by the will shall be paid; and this suit was brought for construction of the will and for direction.
The trial court held that the trust created by item 17 of the will was a valid executory trust; and the bank as trustee was ordered to hold the one-third of the residue placed in trust for Mrs. Charlotte J. Love, and to pay her $200 per month during her life, as required under the provisions of the will; and in effect held that David Love and Lydia Jean Love McManus had a defeasible vested remainder in the said one-third of the residue, which interest could not become indefeasibly vested until the death of Mrs. Charlotte J. Love. To this judgment Mrs. Charlotte J. Love excepted.
While the intention of a testator cannot be given effect if contrary to express enactments of the legislature or positive rules of property ( Wright v. Hill, 140 Ga. 554, 79 S.E. 546; Lester v. Stephens, 113 Ga. 495, 499, 39 S.E. 109; Hertz v. Abrahams, 110 Ga. 707, 36 S.E. 409; Thompson v. Sanders, 118 Ga. 928, 930, 45 S.E. 715; Stringfellow v. Harmon, 207 Ga. 62, 60 S.E.2d 139) — in the construction of a will the cardinal rule is that the intention of the testator should be the first and great object of inquiry, and this is to be sought for by looking to the whole will, and not to detached parts of it, and when so ascertained, shall be given effect as far as may be consistent with the rules of law. Code, § 113-806; Cook v. Weaver, 12 Ga. 47; Atwood v. Geiger, 69 Ga. 498; Rogers v. Highnote, 126 Ga. 740 ( 56 S.E. 93); Watts v. Finley, 187 Ga. 629 ( 1 S.E.2d 723); Buchanan v. Nicholson, 192 Ga. 754 ( 16 S.E.2d 743); Sproull v. Graves, 194 Ga. 66 ( 20 S.E.2d 613); Yerbey v. Chandler, 194 Ga. 263 ( 21 S.E.2d 636); Mills v. Tyus, 195 Ga. 119 ( 23 S.E.2d 259). Under the foregoing rules, items 17 and 18 of the will under consideration must be construed together, and in connection with all of the provisions of the will. So construed, it is clearly apparent that it was the intention of the testator that the legal title to the one-third of the residue of his estate at the time his grandson David Love arrived at the age of 35 years was to vest in the trustee, and that Mrs. Charlotte J. Love has a beneficial interest in the fund only to the extent of receiving from it the sum of $200 per month for and during her life; that David and Lydia, the testator's grandchildren, may or may not take the remainder ofter the death of Mrs. Charlotte J. Love, depending upon whether both or either of them outlives her; that the children of David and Lydia may not take the remainder after the death of Mrs. Charlotte J. Love, depending upon whether their respective parents predecease Mrs. Charlotte J. Love, and whether or not they or any one of them outlives his respective parent. If David and Lydia predecease Mrs. Charlotte J. Love, and if no children of David and Lydia survive them, then the remainder will be treated as a lapsed legacy upon the death of Mrs. Charlotte J. Love. Half of the remainder may be such a lapsed legacy if one parent dies before Mrs. Charlotte J. Love without leaving surviving child or children, while the other half of the remainder may go to the surviving parent or to the surviving child or children of a deceased parent. Under these two items of the will, construed together, Mrs. Charlotte J. Love takes a beneficial interest in the trust fund, title to which is in the trustee, to the extent of $200 per month for life; David and Lydia take defeasible vested remainder interest subject to be divested by their death prior to the death of Mrs. Charlotte J. Love; and the children of David and Lydia take a remainder interest contingent upon the death of their parent before the death of Mrs. Charlotte J. Love. Code, § 85-703; Redfearn on Wills (Revised Ed.), 322, § 186; Riggins v. Adair McCarty Bros., 105 Ga. 727 ( 31 S.E. 743); Satterfield v. Tate, 132 Ga. 256 (2) ( 64 S.E. 60). Under this construction of the will, David and Lydia had no such indefeasible vested-remainder interest in the trust fund as that a conveyance thereof by them to Charlotte J. Love would vest in her both the equitable and legal title to the trust property, which became executed because she was of full age and capacity, as provided in Code § 108-112, and as was the case in Clark v. Baker, 186 Ga. 65 ( 196 S.E. 750), relied on by the plaintiff in error; but the will creates a subsisting executory trust, and the legal title to the corpus of the one-third of the residue of the estate remains in the trustee, with the power to manage, sell, invest, exchange, and reinvest, and to keep the corpus secure for the purpose of paying to the life beneficiary the monthly amounts provided for, whether more or less than the income from the trust fund, and the remainder thereof at her death to the remaindermen, to ascertain who they will be, and to distribute the estate among them when they are ascertained on the happening of the contingencies contemplated by the testator. George P. Thomas Co. v. Crawford, 57 Ga. 211; Jennings v. Coleman Newsom, 59 Ga. 718; Cushman v. Coleman, 92 Ga. 772 ( 19 S.E. 46); Henderson v. Williams, 97 Ga. 709 ( 25 S.E. 395); Riggins v. Adair McCarty Bros., 105 Ga. 727 ( 31 S.E. 743); Woodbery v. Atlas Realty Co., 148 Ga. 712 ( 98 S.E. 472). In Burton v. Patton, 162 Ga. 610 (2) ( 134 S.E. 603), it is held: "Where a testator devises certain described realty to a named person as trustee for A `during her natural life, and after her death to her children then in life, and representatives of any children who may have died leaving children, the children of deceased child or children taking their father's or mother's share', the terms of the devise are broad enough to embrace the fee in the premises described and this fee being carved up into an estate for life in favor of one beneficiary and remainders in behalf of the other beneficiaries, who are uncertain and unascertained, the will should be construed as clothing the trustee with full title, and the title as to the remainders should be considered as abiding in the named trustee so long, at least, as the identical persons who are to take and enjoy it are not ascertainable. Up to that time the trust is executory, and the remainder is an equitable, not a legal, estate." See also Sanders v. First National Bank of Atlanta, 189 Ga. 450 ( 6 S.E.2d 294); Budreau v. Mingledorff, 207 Ga. 538 ( 63 S.E. 326), and cases there cited. The trial court did not err in holding that items 17 and 18 of the will created a valid executory trust rather than a passive and executed trust, and that the assignments executed by David Love and Lydia Jean Love McManus to Mrs. Charlotte J. Love did not cause a merger of interests and estates, and the trust to become executed. In this view of the case, it is unnecessary to determine whether the act approved February 17, 1950 (Ga. L. 1950, p. 310) is applicable here.
Judgment affirmed. All the Justices concur.