The trial court found as a matter of law that the foundation to which Royal had directed the bequest was not a proper recipient of the bequest, and that Royal breached his fiduciary duty when he distributed estate funds to the foundation "without regard to the specific terms of the Will. . . ." We agree with the trial court's construction of the Hollis will. The testator's intent, "derived from consideration of the will as a whole, read in the light of the circumstances surrounding its execution" ( Norton v. Georgia RR Bank Trust, 253 Ga. 596, 600 ( 322 SE2d 870) (1984)), was to list successive contingent beneficiaries: if the City did not take the bequest, it was to be offered to the historical society; if the historical society was no longer in existence, the bequest was to be offered to the society's successor; if the historical society or its successor declined the bequest or did not exist, the bequest was to go to "a comparable charitable entity." Had the testator intended to give the executor discretion to choose the first contingent beneficiary, the testator could have used the language he employed in making a bequest of one-half of his residuary estate to a testamentary trust and setting out the plan of distribution of the assets of the trust upon its liquidation or termination: the property held in trust "shall be applied in my Trustee's best judgment and discretion to such charitable and benevolent purposes in the City of Newnan as my Trustee shall select, and in any sums that my Trustee may deem proper" and
"In will construction the court is required to `seek diligently for the intention of the testator and ... give effect to the same as far as it may be consistent with the rules of law.' OCGA § 53-2-91." Norton v. Ga. R. Bank c., 253 Ga. 596, 597 ( 322 S.E.2d 870) (1984). We must look to the will as a whole in our determination, but the particular items that aid us in our decision are Items Five, Six, and Thirteen. Item Five states, in part, "I give all my securities, including without limitation stocks in corporations, in equal shares to the following persons..." Item Six states, in part, "I give, bequeath and devise all of the rest, residue and remainder of my property of every kind and wherever located ... in equal shares to..." Item Thirteen states, in part, "All bonds, bank accounts, savings accounts (whether in banks, savings and loan associations or building and loan associations) and similar property which I may own at the time of my death in the name of myself and another person or persons, which are payable on or after my death to the survivor or survivors, shall be the sole property of the survivor or survivors ... and my Executor shall make no claim against the survivor or survivors."
The court will presume that the testator's intent is to make a valid, legal gift and will therefore adopt a construction that does not violate the rule against perpetuities when possible. See Norton v. Ga. R. Bank c., 253 Ga. 596 ( 322 S.E.2d 870) (1984). While the language of Thurston Carlton's will may be susceptible to the construction placed upon it by the trial court, it is also susceptible to a construction making all provisions of the will valid.
"In will construction the court is required to `seek diligently for the intention of the testator and ... give effect to the same as far as it may be consistent with the rules of law.' OCGA § 53-2-91." Norton v. Ga. R. Bank c. Trust, 253 Ga. 596, 597 ( 322 S.E.2d 870) (1984). Items 4 through 15 of the will provide for numerous legacies that lapse upon stated conditions and become "null and void."
And we have previously held that the existence of trees on land is a factor to be considered in determining its value.Norton v. Georgia R. Bank Trust, 253 Ga. 596, 602 (2) ( 322 S.E.2d 870) (1984). See Dawson v. Dept. of Transp., 203 Ga. App. 157 (1) ( 416 S.E.2d 163) (1992).
Affidavits in support of summary judgment are not subject initially to cross-examination. Norton v. Georgia R. Bank Trust Co., 248 Ga. 847 ( 285 S.E.2d 910) (1982), aff'd, 253 Ga. 596 ( 322 S.E.2d 870) (1984). A movant for summary judgment does not have to be subject to cross-examination before his affidavit may be considered in support of a motion for summary judgment.
Considering in toto the final judgment and decree, the settlement agreement, and the subject note, together with the factual admissions of the parties, it is clear that the settlement agreement was not intended as the complete agreement of the parties regarding the disposition of real property. Rather, the settlement agreement was but a partial integration of the parties' contractual intent regarding the disposition of their real property; and, that as to the real property located at 360-4th Street, the terms recited in the note, executed by the appellant on March 7, 1986, were intended to be controlling. Applying the applicable legal principles pertaining to the review of summary judgment issues by this court, see generally Norton v. Ga. R. Bank c., 253 Ga. 596, 603 ( 322 S.E.2d 870), we are satisfied that the trial court did not err. Appellant's enumeration of error is without merit. Judgment affirmed. Banke, P. J., and Beasley, J., concur.
]' [Cit.]" Norton v. Ga. R. Bank Trust, 253 Ga. 596, 603 ( 322 S.E.2d 870) (1984). Applying this standard, we find that, as to the existence of a hazardous substance, the deposition testimony of appellee John Ramey is sufficient to withstand appellants' motion for summary judgment.
' [Cit.]" Norton v. Ga. R. Bank Trust, 253 Ga. 596, 603 ( 322 S.E.2d 870) (1984). Viewing the evidence in favor of plaintiff, we find the following: Plaintiff often shopped in defendant's store, going there about once a week.
Id. Construing the evidence most favorable to the plaintiff and giving her the benefit of all favorable inferences that can be drawn from the evidence, Norton v. Ga. R. Bank Trust, 253 Ga. 596, 603 ( 322 S.E.2d 870) (1984), we find no genuine issue of material fact regarding authority to terminate. The nurse claims there is a material dispute as to the supervisor's authority because, pursuant to the hospital's policies and procedures manual, the concurrence of the personnel director and divisional vice president or president is necessary to authorize a discharge.