Opinion
21527.
SUBMITTED JANUARY 17, 1962.
DECIDED FEBRUARY 9, 1962. REHEARING DENIED FEBRUARY 20, 1962.
Construction of will. Fulton Superior Court. Before Judge Pharr.
Hugh Head, Jr., for plaintiff in error.
Buchanan, Edenfield Sizemore, Newell Edenfield, contra.
1. A condition "in terrorem" is a provision in a will which threatens the beneficiaries under the will with forfeiture of their legacies or bequests should they contest the validity or dispositions of the will. The clause in question in the instant case is not "in terrorem."
2. For the reasons set out in division 2 of the opinion the trial court properly sustained a general demurrer to the petition of the plaintiff in error.
SUBMITTED JANUARY 17, 1962 — DECIDED FEBRUARY 9, 1962 — REHEARING DENIED FEBRUARY 20, 1962.
This action was brought by a daughter against the executrix and legatees of her deceased father's estate. The daughter seeks to have her father's will construed in her favor.
The controversy arises out of the following parts of the will:
"Item III. I give, bequeath and devise to my wife . . . all my property, real and personal, with the remainder over at her death to my two daughters, Nannette and Jeannette Rapp, in equal parts, share and share alike. However, if my oldest daughter does marry Jody Taylor, a boy I do not like and care for in any respects; said daughter Nannette Rapp does not share in any respects with my youngest daughter Jeannette Rapp. Under the above circumstances, should Nannette Rapp marry Jody Taylor, all the proceeds from my estate shall vest in Jeannette Rapp. Should she not marry Jody Taylor, she shall share and share alike with Jeannette Rapp.
"Item V. As I am to participate in the proceeds of my father's estate, William M. Rapp, Sr., deceased. (A copy of this will is attached and made a part of this will) My wife is charged to see that this part of the will belonging to me is executed in my behalf and this real and personal property and or cash is to be put in my estate, and be administered by my wife in my behalf and for my daughters or other children that I might have in the future."
The daughter, Nannette Rapp, did marry the Jody Taylor referred to in Item III, and after the death of her father she filed this action seeking a declaratory judgment construing the will and adjudicating that Item III, insofar as it sought to disinherit her, was void as a condition "in terrorem." The trial court dismissed her petition on general demurrer and exception was taken to that ruling.
1. Plaintiff in error contends that Item III of the will constitutes an "in terrorem" clause which would render the will nugatory.
We cannot agree with that contention as it is clear that the clause in question is not an "in terrorem" clause.
Black's Law Dictionary, 4th ed., pp. 901, 902, defines "in terrorem" as follows: "In terror or warning; by way of threat. Applied to legacies given upon condition that the recipient shall not dispute the validity or the dispositions of the will." See Cohen v. Reisman, 203 Ga. 684 (4) ( 48 S.E.2d 113).
Even if the clause were an in terrorem clause, such clauses are valid in this State so long as there is a limitation over to some other person and so long as the condition imposed is not impossible, illegal, or against public policy. Code § 113-820.
Although the plaintiff in error argues that a condition in a will which is in restraint of marriage is void, citing Code § 53-107 as authority for her argument, it is clear that the second sentence of that section, when applied to the facts of the case under consideration, completely undermine the contention of the plaintiff in error.
"Marriage is encouraged by the law, and every effort to restrain or discourage marriage by contract, condition, limitation, or otherwise, shall be invalid and void. Prohibiting marriage to a particular person or persons, or before a certain reasonable age, or other prudential provisions looking only to the interest of the person to be benefited, and not in general restraint of marriage will be allowed and held valid." Code § 53-107. (Italics ours.)
It is clear that the restraint set out in the will in question was a specific restraint, i. e., the plaintiff in error was restrained from marrying a particular person, and therefore the provision was not void.
2. Plaintiff in error also contends that, even if Item III of the will is valid, Item V gives an estate to her notwithstanding the provision in Item III.
It is well settled that the general intention of the testator, as gathered from the entire will, must prevail over a particular intention gathered from a part of the will. Robert v. West Reid. 15 Ga. 122 (4); Sumpter v. Carter, 115 Ga. 893 ( 42 S.E. 324. 60 LRA 274); Rowland v. Mathews, 153 Ga. 849 ( 113 S.E. 442); Thomas v. King, 182 Ga. 463 ( 185 S.E. 820).
Viewing the will in its entirety, there can be no question but that the testator intended for the plaintiff in error to share in his portion of his father's estate only if the exclusion set out in Item III never came into operation. Item V provides what plaintiff in error would have taken had she never married Taylor thereby causing her exclusion under the will as provided by Item III.
This construction gives effect to both Item III and Item V of the will and is, in the view we take of this case, the only reasonable construction possible.
In view of the foregoing it was not error for the trial court to sustain the general demurrer to the petition of the plaintiff in error.
Judgment affirmed. All the Justices concur.