237 Ga. 562 | Ga. | 1976
Fred Cannon, Jr. filed a complaint in which he sought to obtain the proceeds of a note which was a part of his mother’s estate at the time of her death in 1970. The complaint alleged that the First National Bank and Drew Fuller had fraudulently placed such note in a trust administered by the First National Bank as trustees while serving as co-executors of his mother’s estate. The trial court denied a motion for summary judgment made by the plaintiff in which he sought a construction of his mother’s will. The defendants in the trial court appealed from judgments which held that contingent beneficiaries of the trust and residuum were not necessary parties to the action. While the three appeals present numerous questions the controlling question is the construction of the testatrix’ will.
1. Item IV of the testatrix’ will provided in part: "I give and bequeath all the rest and remainder of my personal property except cash, stocks and bonds, to my son, Fred L. Cannon', Jr----” This item of the will then provides that in the event the testatrix’ son is not living at the time of her death, said items of personal property should be divided
On July 17, 1970 the testatrix sold a large tract of land and took a deed to secure debt and promissory note in connection with said sale. The will was dated August 13, 1970 and the codicil thereto was dated November 16, 1970. She died on December 26, 1970. The record shows without dispute that the trust provided for in Item VI would fail completely if the phrase "personal property except cash, stocks and bonds” should be construed to include all personal property, tangible and intangible, owned by the testatrix at the time of her death. In support of his contention the plaintiff relies upon the decision of this court in Cosgro v. Quinn, 219 Ga. 272 (133 SE2d 343) (1963) which held that an item of a will bequeathing to one individual the "stocks, bonds and cash” did not include promissory notes under the terms of that will.
In the recent case of Alford v. C. & S. Nat. Bank, 237 Ga. 194 (1976), it was held that a bequest of "bonds, capital stock or other securities” did not include promissory notes owned by and payable to the testator at the time of his death.
No contention is made that the promissory notes given in connection with a deed to secure debt to real estate are not personal property. The question presented
In Blakeman v. Harwell, 198 Ga. 165, 175 (31 SE2d 50) (1944), Justice Warren Grice, speaking for the court, held: "Courts have frequently held that the words 'personal property’ are susceptible of two meanings: one, the broader, including everything which is the subject of ownership, except lands and interest in lands; the other, more restricted, oftentimes embracing only goods and chattels. In ascertaining from the entire will, and the surrounding circumstances, what the intention of the testator was by the use thereof, it has not infrequently been ruled that the term 'personal property’ did not include money, notes, and choses in action. Bryant v. Bryant, 129 Me. 251 (151A 429); Bills v. Putnam, 64 N. H. 554 (15 A 138); Andrews v. Schoppe, 84 Me. 170 (24 A 805); In re Combs’ Estate, 136 Cal. App. 286 (28 P2d 711); In re Cowden’s Estate, 10 Cal. App. 2d 481 (51 P2d 1165); Bond v. Martin (Ky.), 76 SW 326; Stender v. Stender, 181 Mich. 648 (148 NW 255); In re Moore’s Estate, 241 Pa. 253 (88 A 432); Southington Bank v. American Baptist Home Mission, 96 Conn. 107 (113 A 166).
"It was said in Bills v. Putnam, supra, that it is at least doubtful whether the term 'personal property’ is generally understood to include money, notes, and choses in action, and that in its popular meaning it is commonly applied to goods and chattels. Several of the cases cited above discuss the reason for the holding that in some instances those words should not be construed to include money, stocks, and bonds, and similar intangibles. If to give it the more restricted meaning would give effect to all the provisions of the will, such rendition will be adopted; if, to give it the broader meaning, other items of the will would be impossible of execution. In Welman v. Neufville, 75 Ga. 124, this court, in affirming a case from Chatham superior court, adopted a written opinion of the trial judge, saying that the question raised as to the proper
"Having demonstrated that the words, 'my personal property,’ do not necessarily mean intangibles also, we have but to apply a few well-known rules to the will itself, in the light of the surrounding circumstances, to be satisfied that as here used they were intended in a restricted sense, and that the trial court correctly decreed that they were used by the testatrix in the sense of tangible personal property. The intention of the testator is to be sought by looking to the whole will, and not to detached parts of it. Cook v. Weaver, 12 Ga. 47. Effect should be given to the entire will and to every part of it, if possible. Brown v. Weaver, 28 Ga. 377; Rogers v. Highnote, 126 Ga. 740 (56 SE 93). All the provisions of the instrument will be harmonized wherever possible so as to give effect to every provision therein. Robertson v. Johnston, 24 Ga. 102; Tyler v. Theilig, 124 Ga. 204, 207 (52 SE 606). As an aid to construction, it is proper to look to the circumstances surrounding the testatrix at the time of the execution of the will. Code § 113-807; Watts v. Finley, 187 Ga. 629 (1 SE2d 723). What does the record show as to the situation of the testatrix, of her family, her property, and the legatees?”
What does the record show with reference to the estate of the testatrix in this case? The value of the entire
2. Inasmuch as the only alleged "fraud” in the plaintiffs complaint dealt with the delivery of the note and its proceeds by the executors of the testatrix’ estate to the trustee, and since under a proper construction of the will this action was not fraudulent, the questions presented by the appeals of the First National Bank and Drew Fuller dealing with the naming of additional parties are deemed moot.
The judgment of the trial court overruling the plaintiffs motion for summary judgment is affirmed and the case is remanded for further action in accordance with this opinion.
Judgment in Case No. 31224 affirmed with direction. The appeals in Case Nos. 31229 and 31233 dismissed.
