Opinion
30722.
ARGUED JANUARY 14, 1976.
DECIDED FEBRUARY 24, 1976.
Construction of will. Lowndes Superior Court. Before Judge Elliott.
Tillman, Brice, McTier, Coleman Talley, for appellant.
Howard O. Hunter, John H. Boman, Jr., for appellee.
The bank, as co-trustee, filed a petition for construction of Item IV of the will of Frank A. Strickland. Item IV of the will created a trust for the benefit of his children in life at the testator's death. The sole issue involved here is whether the testator intended to create a separate trust for each of his children or one trust for the benefit of all of his surviving children.
This court has previously considered other provisions of this same will. See Strickland v. Trust Co. of Ga., 230 Ga. 714 ( 198 S.E.2d 668) (1973).
The language of Item IV of the will is inconclusive. For example, "Trustee shall divide the whole of the trust estate into as many shares as I then have living children," and "making the division thereof only upon their books of account." Other directives of this item of the will are "the trusts herein created" and as to the division of the share of the estate in case of the death of a beneficiary.
The intention of the testator is to be sought by looking into the whole will and not to detached parts of it. In Item VI of the will, reference is made to "each and every trust created by this will" and there providing for encroachment upon the corpus of any trust. In 89 CJS 739, Trust, § 23, it is said "It has been held, however, that there can be no trust in property for the common benefit of two persons where one of them has power at any time to destroy the trust by disposing of the property." Citing Guye v. Guye, 63 Wn. 340 (115P731, 37 LRA(NS) 186).
The trustee under the will in the present case is given the right to encroach on the corpus of the trust for the benefit of one of the children. If such encroachment were necessary, it would destroy the trust to the detriment of the remaining beneficiaries under the one trust theory.
The trial court properly construed Item IV of the will as creating four separate trusts, one for each of the children of the testator in life at the time of his death.
Judgment affirmed. All the Justices concur, except Gunter, J., who dissents.