Simmons v. England
323 Ga. App. 251
Ga. Ct. App.2013Background
- Simmons and Stinson, former employees of testator, filed a declaratory judgment asserting they were entitled under Article V of the will to certain business assets of Traditional Fine Art, Ltd.
- Testator Robert Carl Haege signed the will on September 8, 2006 and died December 5, 2006, unmarried with no children, sister named executrix.
- Article V bequeaths ‘all of my business interests, both tangible and intangible, real or personal, connected to the business known as Traditional Fine Art, Ltd.’ to Simmons, Stinson, James E. Haege, and Sharon Haege England, per stirpes, with specific percentages for certain certificates.
- The superior court held there was no “business property” to distribute because Haege operated as a sole proprietor, so all property was personal and not within the will’s devise.
- Supreme Court transferred the appeal to this court, determining the issue was whether the estate contains business property, not the will’s validity or meaning, and majority held there were business interests to devise.
- The court reversed the superior court, imposing a remand to the factfinder to identify which assets constitute the business interests; the potential certificates provision was deemed inapplicable because the limited partnership had not been formed at death.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Existence of business property to devise | Simmons and Stinson contend there were business interests to be devised. | Executrix argues no business property existed due to sole proprietorship; assets were personal. | There were business interests to devise; remand for asset identification. |
| Effect of missing LLC and ademption of certificates | Member certificates provision is not the sole focus and business interests should still be devised. | Without formation of a limited partnership, the member certificates bequest is inapplicable. | Member certificates bequest adempted; rest of business interests bequest survives and must be identified by factfinder. |
| Interpretation of will as a whole | Testator’s intention should govern and all sentences must be given effect. | Limitation to certificates controls; other language cannot be stretched to create nonexistent assets. | Whole will must be taken together; testator’s intention prevails; remand to identify assets. |
Key Cases Cited
- Jordan v. Middleton, 220 Ga. 903 (1965) (testator’s intention prevails; whole will considered)
- Scheridan v. Scheridan, 132 Ga. App. 210 (1974) (parol evidence to resolve latent ambiguity)
- Delbello v. Bilyeu, 274 Ga. 776 (2002) (trial court as factfinder determines what constitutes personal property)
- In re Estate of Lott, 251 Ga. 461 (1983) (construing will provisions within general appellate jurisdiction)
- Saxton v. Coastal Dialysis and Medical Clinic, 267 Ga. 177 (1996) (ancillary issues within general appellate jurisdiction decided here)
- Troutman v. Troutman, 297 Ga. App. 62 (2009) (ancillary jurisdiction considerations after transfer)
- Neal v. State, 290 Ga. 563 (2012) (supreme court jurisdiction over related matters)
- Miller v. Harco Nat. Ins. Co., 274 Ga. 387 (2001) (distinction of personal versus corporate assets in analogous contexts)
- Brand v. Southern Employment Svc., 247 Ga. App. 638 (2001) (trade name as alter ego of individual for certain contexts)
- Clarendon Nat. Ins. Co. v. Sledge, 261 Ga. App. 661 (2003) (no legal distinction between personal and sole-proprietorship assets for receipt-of-premium test)