The appeal here is from an order of the Superior Court of DeKalb County entered on motion for summary judgment in a case brought by the executor of the estate of Miss Clem Boyd seeking construction of her will and direction from the court.
1. The appeal is not subject to dismissal. Appellees contend that the order appealed from is not an appealable one since the trial court denied appellant’s motion for a summary judgment. The order appealed from, though it denied appellant’s motion for a summary judgment, went further and granted summary judgment favorable to appellees as to several issues in the case. It is thus subject to direct appeal (Code Ann. § 81A-156 (h)), and "all judgments, rulings or orders rendered in the case which are raised on appeal, and which may affect” the case upon remand are subject to review by this court. Code Ann. § 6-701 (b).
2. The trial court did not err in ruling that there is a genuine issue of fact as to whether Angie Boyd Hansen, the appellant’s testatrix, renounced her interest under *842 the will of Clem Boyd. The will here in question was executed by Miss Boyd on March 10, 1962. The testatrix died on April 6, 1962.
(a) Angie Boyd Hansen, on January 22, 1963, executed a "Conditional Renunciation” in which she conditioned her renunciation on her not having a lingering illness after all her funds had been exhausted and that she not have an accident or illness or inability to care for herself which would send her to a hospital or nursing home whereby her own cash would be exhausted and she would be thereby rendered dependent on others. The only contention of appellant with respect to this purported renunciation is that it is too conditional to constitute a valid and binding renunciation. No authority is cited by appellant for this position and we are not aware of any rule of law or of any public policy which would forbid the enforcement of such attempted renouncement. The issue as to this attempted renouncement is simply whether in fact Mrs. Hansen’s funds subsequently became exhausted and whether she thereby became dependent on others by reason thereof. This factual issue was properly left by the court for decision by a jury.
(b) In October, 1964, Angie Boyd Hansen executed a purported will containing a further renouncement. It appears that that instrument has been declared to be void by reason of lack of mental capacity on the part of Angie Boyd Hansen at the time it was executed. What effect, if any, this attempted renouncement has in view of that ruling it is not necessary for us to decide at this time.
(c) On June 28, 1965, Angie Boyd Hansen unconditionally and in the presence of three witnesses and a notary public again executed in writing a renouncement. The legal effect of this instrument may depend on her mental capacity at the time or upon other issues of fact. It follows that the first ground of *843 enumerated error shows no cause for reversal.
3. By Item XI of her will, the testatrix authorized her executors therein named "to sell, at private sale, my real property located at corner of Mt. Perrian Road and Tour-Lane’ Highway to Marietta from Atlanta, N. W., such sale to be made after said property is zoned for business and at such time a fair price can be obtained therefor. Should they receive an equivalent price before it is zoned for business, they still may sell at private sale, but I prefer waiting for the more advantageous time after it is zoned for business, or motel, or club. Said executors are authorized to sell this or any of my property — real or personal — at private sale without Order of Court, and without advertisement.” The petitioner alleged in Count 3 of the complaint that the property referred to in this item is substantially surrounded by single family residences and that the possibility that it can be zoned for business is very slight and that under the conditions prevailing the sale of the property at private sale can bring the best price. In ruling on the executor’s plea for direction with respect to this item the trial court did not err in holding that the executor could sell the property therein referred to at private sale "if he in his discretion determines a private sale will be more advantageous to the estate.”
4. "The natural and reasonable presumption is that a testator in executing a will intends to dispose of his whole estate and not to die intestate as to any part of it, and this presumption is overcome only where the intention to do otherwise is clear and unambiguous or is necessarily implied.
Armstrong v. Merts,
5. We now approach the central issue of this appeal. In Item X of the will of Clem Boyd, there is recorded the desire that an educational scholarship fund be established in memory of the deceased’s parents. This provision is, in its entirety, as follows: "All funds remaining after the aforementioned bequests are made or set aside, I wish made into an Endowment or Scholarship Fund in memory of my parents, the late William and Frances McCord Boyd, of Newton County, Georgia, said fund to be known as the Boyd-McCord Memorial Scholarship and placed with the Trustees of the Georgia Institute of Technology, Emory University, and Agnes Scott College, in equal proportions, to manage and keep reports on same. This scholarship is set aside for benefit of deserving and qualified poor white boys and girls, and interest only is to be used for said scholarships. However, should any proven descendant of my parents qualify and apply for benefits of this scholarship, it is my desire that they be given preference, and, if need be, go into the principal to the amount of $500.00 per scholastic year of four years for said descendant if earnestness is indicated and courses taken leading to a degree.” (Emphasis supplied.)
Although two of the named universities to act as trustees
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of the funds are private institutions, the Attorney General representing the Board of Regents of the University System of Georgia has conceded the requisite state interest with regard to the trust administration on behalf of the Georgia Institute of Technology. We proceed, therefore, on the basis that there is sufficient state action involved to invoke the strictures of the Fourteenth Amendment of the United States Constitution and that the racial restrictions in the devise may not be enforced save in violation of equal protection of law. Evans v. Newton,
The rule of law commonly termed the doctrine of cy pres is codified in the law of Georgia in two separate sections of the Code. These sections are as follows: "When a valid charitable bequest is incapable for some reason of execution in the exact manner provided by the testator, donor, or founder, a court of equity will carry it into effect in such a way as will as nearly as possible effectuate his intention.” Code § 108-202. "A devise or bequest to a charitable use will be sustained and carried out in this State; and in all cases where there is a general intention manifested by the testator to effect a certain purpose, and the particular mode in which he directs it to be done shall fail from any cause, a court of chancery may, by approximation, effectuate the purpose in a manner most similar to that indicated by the testator.” Code § 113-815.
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The public policy expressed in these provisions favoring the validation of charitable trusts is supported by the longstanding rule of construction of this court by which forfeitures because of restrictive conditions attached to grants or devises of property are not favored, and as well by related Code provisions immunizing such trusts from the Georgia law against perpetuities. Code Ann. § 85-707. See
Hardage v. Hardage,
As a general rule, the doctrine of
cy pres
is applied in cases (1) where there is the presence of an otherwise valid charitable grant or trust; that is, one that has charity as its purpose and sufficiently offers benefits to an indefinite public; (2) where the specific intention of the settlor may not be legally or practicably carried into effect; and (3) where there is exhibited a general charitable intent on the part of the settlor. See, e.g.,
Creech v. Scottish Rite Hospital,
In viewing the will of Clem Boyd, the trusts established in Item X conformed in subject matter to those legitimate subjects of charity as found in Code § 108-203, being for the poor and for educational purposes. The purpose was one which offered a benefit to the general community, thereby qualifying as a public trust even though a preference is given to the relatives of the testator. Cp.
Hardage v. Hardage,
The appellant has argued on the basis of
Evans v. Abney,
The will in the present case did not contain language by which the testatrix intended that the charitable trusts be administered exclusively in the manner prescribed. Other evidence supportive of the establishment of a specific and exclusive intention was also absent from the will, for there was no provision in the devise, for example, for a reverter clause or an alternative gift over in the event of a failure of the grant. On the other hand, in other parts of the will, the testatrix indicated strongly that she desired that no provision of the will should fail and the funds as set aside revert to her heirs. In Item IX, she noted in this regard that "Adults do not need my life’s earnings, and the children who need a college education are the ones who interest me most.”
We conclude from the foregoing that the evidence on summary judgment was conclusive of the trial court’s finding of a general charitable intent on the part of the testatrix and that the doctrine of cy pres was correctly applied in excluding the illegal racial classification from the charitable grant.
6. Under the foregoing ruling, it is unnecessary to pass upon the remaining contention of the appellant that the devise under Item X of the will violates the rule against perpetuities.
Judgment affirmed.