Swanson v. Swanson

Sears, Justice,

dissenting.

I disagree with the majority’s conclusion that the appellant, Peggy Swanson, is entitled to the remainder interests of Bennie Swanson, her deceased husband, in the two trusts created by Bennie’s father. Even assuming Bennie had a vested interest in the trusts, I conclude that the trusts contained a condition subsequent that required Bennie to survive the life tenant to maintain his right to the property. Because he did not do so, he was divested of any interest he had in the property, and Peggy therefore has no interests in the trusts. For these reasons, I respectfully dissent.

1. Bennie’s father’s will established an “Item IV Trust” and an “Item V Trust,” both of which established Gertrude Swanson, Bennie’s mother, as the life beneficiary of the corpus of the trusts. The Item IV Trust gave Gertrude Swanson a power to dispose of the property either during her life or by will at her death, and provided that, if she failed

to make such disposition, then and in that event, the corpus of this trust, upon her death, shall pass to my nine children, *738hereinabove named, to be divided among them in equal shares, share and share alike. If any of my children should not be in life at the time of death of my said wife, the share of such deceased child shall go to his or her surviving children, per stirpes.

The Item V Trust provided that upon the death of Gertrude Swanson, the “remaining assets of this trust shall be divided into nine equal shares, one share for each of my surviving children or for the then surviving issue of each deceased child of ours, if any, per stirpes.” Item V also provided that the corpus “shall be paid over” to the beneficiaries free of the trust.

Item VII of the Trust provides that, upon the sale of property contained in the Item V trust following its termination, it is the testator’s “intention that any of my heirs shall have the right and privilege to purchase and retain any of my property they so desire to the exclusion of a stranger to my estate ”18

Item VIII provides that if any of the children die before receiving the corpus of the share allocated to him or her, then such share shall be held for the benefit of his or her surviving children until they reach the age of 21, “at which time his or her share shall be transferred and paid over to him or her.”

2. Although the law in Georgia favors the vesting of remainders in cases of doubt, and favors conditions subsequent to conditions precedent, the crucial question in determining the descendiblity of future interests is whether the will or trust requires that the devisee survive to the time of distribution to maintain his interests in the property.19 Moreover, “[i]n construing a will the court is required to examine it as a whole and to search diligently for the intention of the testator as the same may be revealed.”20 In addition, although OCGA § 44-6-66 provides that words of survivorship shall refer to the death of the testator in order to vest remainders, it also provides that this construction is unnecessary if a “manifest intent to the contrary appears.”

Moreover, although this State has a preference for early vesting and for construing conditions to be subsequent, I believe that the majority in this case adheres to these principles to the detriment of the overriding principle of ascertaining the testator’s intent. In fact, Professor Chaffin, on whom the majority relies, has stated that “[t]he *739Georgia Courts have carried the application of [the foregoing principles] to extreme lengths, producing a line of decisions which reach results that could not be anticipated and were perhaps unintended by the donor,”21 and that these rules have “little, if any, justification in modern law.”22 Chaffin also notes that the rules followed by the majority in this case have several undesirable effects, including defeating the testator’s intent to have the interest remain in his blood line.23 Chaffin contends that the tendency to blindly follow the foregoing rules leads courts “to treat as mere surplusage language which might require the interest holder to survive to the period of distribution.”24

3. In determining the testator’s intent in this case, it is important to view the will as a whole. Thus, although this case deals with the interest of a child, as opposed to the interest of a grandchild, it is appropriate to review the whole testamentary scheme, including dispositions to grandchildren, in order to determine the testator’s intent.

I turn first to the Item IV Trust. Our decision in Lemmons, authored by Justice Hunstein, is illustrative of the proper construction to give this trust. In Lemmons, the relevant part of the will provided that “upon the death of my wife [the life beneficiary],” the estate was to pass to the testator’s three sisters-in-law. The will then provided that in the event that one or more of the sisters-in-law were not in life, their shares would go elsewhere. We held that “the phrase ‘upon the death of my wife,’ ” combined with the direction that “ ‘in the event that [a certain sister-in-law] is not in life,’ ” her share would be directed elsewhere, indicated that the testator “contemplated that the remaindermen survive the testator’s wife in order to receive an interest.”25 We also specifically concluded in Lemmons that Witcher v. Witcher,26 on which the majority relies in this case, was distinguishable from Lemmons and not controlling.

In the present case, the Item IV Trust contains an identical testamentary pattern as that in Lemmons, and I conclude that it demonstrates the same testamentary intent as that found in Lemmons. The majority, however, concludes that Lemmons is not controlling in this case, because we erroneously construed the remainder in Lemmons to be contingent instead of vested. The majority, however, concludes that we reached the right result in Lemmons because the will *740contained a condition subsequent that the sisters-in-law survive the life tenant.27 However, whether the remainderman’s interest in Lemmons is classified as a contingent remainder or as a vested remainder subject to the condition subsequent that the remainderman survive the life tenant is of little consequence. What is more, because the language of the trust in Lemmons and the language of the trusts in this case are identical for all relevant purposes, I must conclude that if the trust in Lemmons created a condition subsequent, then the trusts in this case create the same condition. In this regard, both the trust in Lemmons and the two trusts in this case provide that upon the death of the life tenant, the trust assets will pass to the named remaindermen. Further, the trusts in both cases provide that if the remaindermen do not survive the life tenant, then the property will pass to a substitute beneficiary. Thus, if Lemmons contained a condition of survivorship as a condition subsequent, the present case does also.

4. As for the Item V Trust, I also conclude that it expresses an intent that the remaindermen survive to the time of distribution. It provides that upon the death of the testator’s wife, the corpus shall be paid to his “surviving children” or to the “then surviving issue of each deceased child.” Item V then provides that the corpus “shall be paid over” to the foregoing named beneficiaries. The use of the phrases “surviving children” and “then surviving issue of each deceased child” indicates both that the testator desired that the beneficiaries survive the testator’s wife28 and that “his property pass within [his] bloodline” rather than be “diverted to others.”29 Moreover, the fact that the testator also provided that the corpus should be “paid over” to the beneficiaries indicates that the testator contemplated that the beneficiaries would be living at the time of the distribution.30 For these reasons, I conclude that the language of the Item V Trust indicates the testator’s intent to impose a condition of survivorship.

5. My conclusion that the language of the two trusts imposes a condition of survivorship is further supported by viewing the will as a whole. For example, Item VII of the will provides that at the termination of the Item V Trust, any of the testator’s heirs shall have the right to purchase any of the assets of the trust that they may desire. That provision specifically provides that it is the testator’s intention that his heirs have the right to retain the trust property “to the exclusion of a stranger to my estate.” Moreover, by beginning Item *741VIII of the will with the phrase, “[s]hould either of my children die before receiving the corpus of the share allocated to him or her,” and by providing in Item VIII that a “surviving” grandchild must live to age 21 for his or her share of trust assets to be “transferred and paid over” to him. or her, the testator imposes a condition of survivorship on the grandchildren, and evidences a scheme to control the disposition of trust assets for the benefit of those persons close to him.31

Decided March 19, 1999 — Reconsideration denied April 1,1999. Shaw, Maddox, Graham, Monk & Bolin, John M. Graham III, Mather D. Graham, Bandy & Stagg, Marshall M. Bandy, Jr., for appellant. Shumaker & Thompson, Everett L. Hixson, Jr., Jane M. Stahl, for appellees.

For these reasons, I conclude that both the Item IV and V Trusts provide that a vested remainderman’s interest may be divested by the condition subsequent of failing to survive the life tenant. Because Bennie Swanson did not survive his mother, I conclude that his wife is not entitled to a share of the trusts in question. Accordingly, I respectfully dissent.

I am authorized to state that Chief Justice Benham and Justice Hines join in this dissent.

Emphasis supplied.

See Chaffin, Studies in the Georgia Law of Decedents’ Estates and Future Interests, Chapter 6, Descendible Future Interests in Georgia: The Effect of the Preference for Early Vesting, p. 333 (1978); Lamb v. NationsBank, 270 Ga. 388, 389 (507 SE2d 457) (1998).

Lemmons v. Lawson, 266 Ga. 571, 572 (1) (468 SE2d 749) (1996).

Chaffin at p. 331.

Id. at 332.

Id. at 345.

Id. at 341.

Lemmons, 266 Ga. at 573 (brackets in original).

231 Ga. 49 (200 SE2d 110) (1973).

Majority opinion at 735, n. 10.

Lamb, 270 Ga. at 389-390; Lemmons, 266 Ga. at 573.

Lamb, 270 Ga. at 391.

Lamb, 270 Ga. at 390.

Lamb, 270 Ga. at 390-391.