This is an appeal from a decision of the Probate Court of Chat-ham County in an action for declaratory judgment brought by NationsBank, N. A. to determine the beneficiaries of a trust established under the Last Will and Testament of Herschel V. Jenkins. 1 The will was executed in 1955, approximately five years before Jenkins died. The portion of the will in controversy is Item III. (4.) which provides:
Upon the death of my last surviving daughter, the corpus of my estate is to be divided into two (2) equal parts, one of the parts to be immediately paid over and delivered to my nieces and nephews then living. In the event of the death of any of *389 my nieces and nephews leaving children, the share of the parent shall be paid over and delivered to such children or their legal guardians. In the event at the time of the distribution herein before provided for, any of my nieces and nephews are indebted to me or to my estate, the amount of such indebtedness shall be deducted from the share which would go to such niece or nephew, or to his or her children.
The probate court found that the trust was intended to be distributed to a class consisting of the testator’s nieces and nephews, or their children, living at the death of the testator’s last surviving daughter, Victoria Jenkins, who died on July 4, 1997. Deceased children of a deceased niece or nephew, and their estates, were determined not to have rights in the trust. We agree that the will provision contains this condition of survivorship, and affirm. 2
1. Appellants contend that the probate court’s construction of the will provision is contrary to Georgia law which favors the early vesting of remainders and constitutes a rewriting of the will in contravention of the testator’s express intent. But the contentions are without merit.
It is clear that the law favors the vesting of remainders in all cases of doubt. OCGA § 44-6-66;
3
Lemmons v. Lawson,
The testator’s intent that the children, i.e., the grandnieces and grandnephews, also be living at the time of distribution in order to take the parent’s share is further evident by looking to the will as a whole and by scrutinizing every phrase that it contains.
Patterson v. Patterson,
The testamentary scheme evidences the clear intent for the testator, who was a prominent Savannah businessman, to retain control of the corpus of the trust. The testator gave his own daughters only life estates and permitted them to encroach upon the corpus to the limited extent of $40,000. He also provided for payments to his sisters in the amount of $150 per month, but only for so long as they were living. He then expressly imposed a condition of survivorship on his nieces and nephews, therefore, refusing to allow them to posthumously control an interest in his estate. Thus, it would defy logic that the testator would deny control to those closest to him and then permit those more distant, and of succeeding generations, to posthumously direct his assets. Trust Co. Bank v. Heyward, supra at 560 (1).
The charitable bequests in the will also reflect the testator’s desire to maintain control and to benefit only those interests with *391 which he felt a personal connection. A Savannah college was to receive $1,000 per year, but only so long as the college operated as a local one. The bequest was subsequently amended by codicil when the college joined the state university system, and the recipient of the bequest became a Savannah high school bearing the testator’s name; the high school was to continue to receive the money only so long as the school was named after the testator. Another recipient of a yearly bequest was the local boys club, with which the testator’s nephew was very involved, and which eventually bore the nephew’s name. The remainder of the income from one-half of the corpus of the testator’s estate was to go to a locally-centered community services organization with the proviso that if there was no local agency performing like services for the charitable agencies of Savannah, the money was to be paid to other selected worthy Savannah charitable organizations.
*391
Thus, it is difficult to conceive that the testator would have intended a scheme that would allow his property to more easily pass outside his interests and possibly even outside his bloodline. Moreover, there is the legal assumption that one would rather have property pass within the bloodline than diverted to others.
Trust Co. Bank v. First Nat. Bank,
2. Appellants are equally unsuccessful in their assertion that the probate court improperly treated the dispositions as a class gift requiring a per capita distribution. The court simply used the word “class” to describe the group of persons who would be eligible to take under the will, that is, those who survived the testator’s last surviving daughter. There is no indication that the term is meant to quantify or define the scope of the interests the beneficiaries are to receive.
3. Inasmuch as the testator’s intent was clear from the will itself, consideration of extrinsic evidence resulted in no harm to appellants.
Judgment affirmed.
Notes
NationsBank, N. A., successor by corporate merger to The Citizens and Southern National Bank, is executor under the will.
The testator’s nephew John Jenkins, Sr. died on March 12,1965, leaving two children: John Jenkins, Jr. and Meredith Jenkins Lamb. John Jenkins, Jr. survived Victoria Jenkins, but Meredith Jenkins Lamb died on September 29, 1982. Ms. Lamb left two surviving children: John Clay Lamb and David Lamb, as well as a surviving spouse, Robert Lamb. The children’s appeal is Case No. S98A1261. Robert Lamb’s appeal is Case No. S98A1262.
The testator’s niece Maude Alice Cubbedge Berry died on February 17, 1996, leaving one child, Lynn Berry Fredlund. Ms. Fredlund died testate on September 17, 1996; the personal representative of Ms. Fredlund’s estate is her husband, Dale E. Fredlund. He filed a motion to intervene asserting the estate’s right to any interest of Ms. Fredlund in the trust. Ms. Fredlund’s surviving son Erik Fredlund was among the persons described in Nations-Bank’s petition as a potential beneficiary. Dale E. Fredlund’s appeal on behalf of Ms. Fredlund’s estate is Case No. S98A1264.
Appellee John Jenkins, Jr. stands to receive a distribution under Item III. (4.) of Herschel V. Jenkins’ will.
This preference for vesting was also found in former Ga. Code Ann. § 85-708.