TUMLIN v. BUTLER et al., 264 Ga. 488, 448 S.E.2.d 198 (1994)
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Summary
Judgment affirmed. All the Justices concur.
Summary
Judgment affirmed. All the Justices concur.
Text
Sherrod & Bernard, Kenneth R. Bernard, Jr., for appellant.
This case concerns construction of the will of Palina O'Brien. Appellee is the executor of the will and appellant is a nephew of the testatrix who was not named in the will. After a hearing on cross-motions for summary judgment, the superior court denied appellant's motion and granted appellee's motion. Appellant appeals from that order.
The sections of the will to be construed are Items VI and VII. Item VI provides, in relevant part, as follows:
All the rest, residue and remainder of my estate[, consisting entirely of personal property], including any lapsed or void legacy . . . , shall be divided and distributed as follows:
A. If John Mack Bell survives me, one-fourth (or twenty-five percent) of said residue and remainder of my estate shall be distributed to my Trustee named hereinafter who shall hold such property in trust [for the benefit of John Mack Bell as] set forth in Item VII of this Will;
B. The remaining three-fourths (or seventy-five percent) of said residue and remainder of my estate shall be distributed in equal shares among . . . fourteen [named] persons or their descendants. . . .
C. If any of the persons designated in subparagraph B above shall predecease me leaving no living descendants, then that person's share shall be added equally to the remaining shares and shall be distributed as if originally a part of said shares.
Item VII provides, in relevant part, as follows:
Upon the death of John Mack Bell, all of the property then remaining in this Trust shall be distributed in equal shares among the persons named in Item VI, Paragraph B, who are living at the time of such distribution.
The superior court held that, as a matter of law, the other 14 residuary legatees, who are nephews and nieces of the testatrix, are entitled to the property designated for Mr. Bell.
There was a lapse of the legacy to Mr. Bell in Item VI. Powell v. Watkins,
[Even] where a lapsed legacy of personalty has been given under and by the terms of the residuary clause, the rule to be followed in Georgia is that such lapsed bequest of personalty does not go to the next of kin or heirs of a testator but to the other residuary legatees.
McNeely v. McNeely,
It follows that the superior court correctly granted appellee's motion for summary judgment and denied appellant's motion for summary judgment.
E. B. Jones, Jr., for appellees.
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This document cites
- Supreme Court of Georgia - MCNEELY v. MCNEELY et al., 228 Ga. 418, 186 S.E.2.d 105
- Supreme Court of Georgia - WILLIAMS et al. v. WHITEHURST et al., 224 Ga. 246, 161 S.E.2.d 507 (1968)
- Supreme Court of Georgia - POWELL et al. v. WATKINS et al., 221 Ga. 851, 148 S.E.2.d 303 (1966)
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