Opinion
18793.
SUBMITTED JANUARY 12, 1955.
DECIDED FEBRUARY 15, 1955.
Construction of will. Before Judge Guess. DeKalb Superior Court. September 9, 1954.
McCurdy Candler, J. Robin Harris, for plaintiffs in error.
Powell, Goldstein, Frazer Murphy, Jones, Hocker, Gladney Grant, George S. Rondebush, contra.
Where the language of a will is clear and can be given legal effect as it stands, the courts will not, by construction, give the will a different effect.
SUBMITTED JANUARY 12, 1955 — DECIDED FEBRUARY 15, 1955.
Mrs. Eva Y. Johnson and Citizens Southern National Bank, as executors and trustees of the estate of Clarence S. Johnson, brought a petition for the construction of Item 4 (A) of the will of Clarence S. Johnson. This item set up a trust estate for the benefit of the widow, Mrs. Eva Y. Johnson. The trust established is one-half of the "rest, residue and remainder of my estate, real, personal and mixed, of whatsoever kind and wherever situated, . . . to be determined after the payment of funeral and administration expenses, claims and debts, but before the deduction of estate or inheritance taxes." This amount is reduced by "one-half the value of all interest in property which passes to my said wife under the provisions of Items Two and Three above, and by operation of law as surviving tenant or otherwise, and also by one-half the amount of all proceeds of insurance received by my said wife to the extent that such interest in property and such insurance proceeds shall be includable in determining the value of my gross estate for Federal estate tax purposes and shall qualify for the marital deduction allowable under the provisions of the Internal Revenue Code of the United States." (Italics ours.)
In Item 4 (B) the remainder of the estate is placed in a second trust, called the "residuary trust," the income of which is to be paid to the widow during her lifetime, with remainder over to the testator's daughter, Mrs. Rozene Johnson McClelland, and her children (who are now minors).
The ambiguity alleged is in determining the method of computing the amount that is to be placed in the first trust. Three methods are set up as possible solutions. The first method uses the total net estate in the possession of the executors as the basis of computation, takes one-half of this amount, and subtracts from it one-half of the property passing directly to the wife. The second uses the entire estate, passing both outside the will and through the executors, takes one-half of this amount, and subtracts one-half the value of the property passing directly to the wife. The third takes one-half of the gross income as in the second method, and subtracts the total amount of the property passing directly to the wife.
Mrs. Johnson, individually, and Mrs. McClelland filed a joint answer, in which they asserted that the second method is the proper method of computation. Julius A. McCurdy, as guardian ad litem for the minor children, and as representing any children unborn of the same class, filed an answer, in which he asserted that the third method is the proper method of computation.
The trial judge passed an order — the case being heard without the intervention of a jury by agreement of all parties — holding that the computation should be according to the second method. The guardian ad litem excepted to this judgment, asserting that the judge should have held the third method to be the proper one.
The testator by the terms and provisions of Item 4 (A) of his will established a "marital trust," and by Item 4 (B) established a "residuary trust." The trial judge gave effect to the will as it was written, and as shown by the quoted excerpt in the statement of facts from Item 4 (A), by reducing the amount subject to the marital trust by one-half of the estate passing directly to the wife. The plaintiffs in error, under the construction contended for by them, would omit the word "one-half," and, in place of reducing the amount to be included in the marital trust by one-half of the estate passing directly to the wife, would deduct the whole of the wife's estate, thus giving no effect to the word "one-half."
Under the rules of law of force in this State, this can not be done. Code § 113-806 provides: "In the construction of all legacies, the court shall seek diligently for the intention of the testator and give effect to the same as far as it may be consistent with the rules of law; and to this end the court may transpose sentences or clauses, and change connecting conjunctions, or even supply omitted words in cases where the clause as it stands is unintelligible or inoperative, and the proof of intention is clear and unquestionable; but if the clause as it stands may have effect, it shall be so construed, however well satisfied the court may be of a different testamentary intention." See also Hertz v. Abrahams, 110 Ga. 707 ( 36 S.E. 409, 50 L.R.A. 361); Shoup v. Williams, 148 Ga. 747, 748 ( 98 S.E. 348); Payne v. Brown, 164 Ga. 171, 174 (2) ( 137 S.E. 921); Hungerford v. Trust Co. of Georgia, 190 Ga. 387 ( 9 S.E.2d 630); Buchanan v. Nicholson, 192 Ga. 754, 763 ( 16 S.E.2d 743); Lane v. Citizens Southern National Bank, 195 Ga. 828, 836 ( 25 S.E.2d 800); Davant v. Shaw, 206 Ga. 843, 846 ( 59 S.E.2d 500).
The word "one-half" in Item 4 (A) of the will should be given effect just as it was given by the trial court. There is nothing to establish that any different testamentary plan was intended by the testator. The will as written is without ambiguity in so far as the word "one-half" appears in the testamentary plan. This being true, the trial judge correctly construed the will in the judgment rendered.
Judgment affirmed. All the Justices concur.