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Piccione v. ARP

Supreme Court of Georgia

October 16, 2017

ARP et al.

          HINES, Chief Justice.

         Gregory and Adam Piccione ("the Picciones"), grandchildren of testator Virginia Arp ("Virginia") and children of Donna Piccione ("Donna"), appeal from the superior court's denial of their motion for summary judgment in this action against their three uncles, Sam and Dwayne Arp, individually and in their capacities as executors of Virginia's estate, and David Arp. For the reasons that follow, we affirm.

         Virginia executed a will in 2002. It provides for her burial and the payment of her debts, and the sole paragraph that sets forth the disposition of her property states in toto: "I give, bequeath and devise unto my children, Sam Arp, Donna Piccione, David Arp and Dwayne Arp, all of the property that I may own at the time of my death, both real and personal, of every kind and description and wherever located, PER CAPITA." (Emphasis in original.) Donna died in 2006, and Virginia died in 2013. The executors of Virginia's estate divided it between Virginia's three surviving children (i.e., themselves and David). The Picciones, contending that they had a combined one-fourth interest in the property that comprised Virginia's estate, sued in superior court, asserting actions for conversion, fraud, and trespass regarding those property interests, [1] and moved for summary judgement, which the trial court denied, concluding that Virginia's use of the words "PER CAPITA" was a "limitation" under the anti-lapse statute, OCGA § 53-4-64 (a)[2]; the anti-lapse provisions of the statute therefore did not apply to the gifts to Virginia's children; as Donna predeceased Virginia, the testamentary gift to Donna lapsed; and thus, the Picciones had no property interest upon which to base their claims. The trial court issued a certificate of immediate review, and this Court granted the Picciones' application for interlocutory appeal. See OCGA § 5-6-34 (b).

         The trial court was correct that Donna's predeceasing Virginia constituted a lapse. "A lapsed legacy or devise is one, unrevoked by the testator, which was good at the time the will was made but which fails to take effect because of the death without issue or other incapacity of the beneficiary in the lifetime of the testator." 1 Sarajane Love, Redfearn, Wills and Administration in Georgia, § 156 (5th ed. 1988). See also Collier v. Citizens & So. Nat'l Bank, 206 Ga. 857, 858-859 (2) (59 S.E.2d 385) (1950). "At common law, and under the law of this State before the act of 1836 ([former] Code, § 113-812), if the legatee died before the death of the testator the legacy lapsed, whether the legatee left issue or not. [Since 1836], if there be issue, it takes as substituting legatee [under the provisions of the anti-lapse statute]. [Cit.]" Sanders v. First Nat. Bank, 189 Ga. 450, 453 (1) (6 S.E.2d 294) (1939). The purpose of the anti-lapse statute is to "obviate the effect of lapse by carrying out what the legislature has presumed the testator's intent would have been as to the disposition of the [testamentary] gift had [the testator] foreseen the possibility that the taker named in the will would die during the [testator's] lifetime." Verner F. Chaffin, Studies in the Georgia Law of Decedents' Estates and Future Interests, p. 212 (1978). See also Robinson v. Ray, 254 Ga. 237, 238 (1) (327 S.E.2d 721) (1985). When first enacted, Georgia's anti-lapse statute was not as it is now, and notably it did not apply to class gifts until it was set forth in the Revised Probate Code of 1998, which enacted OCGA § 53-4-64 in its current form; the anti-lapse statute now applies to testamentary gifts to both individuals and classes, albeit with differing language regarding the types of gifts. See 1 Mary F. Radford, Redfearn, Wills and Administration in Georgia, § 8-5 (fn. 5) (6th ed. 2000) ("Prior to the enactment of the Revised Probate Code [of 1998], case law would have directed a different result - that is, that the lapsed gift would be shared among the other members of the class of the testator's children rather than pass to the deceased child's descendants. [Cits.]"); 1 Sarajane Love, supra.

         The trial court was correct in determining that the bequests in Virginia's will constituted individual gifts to her four named children, and thus was governed by OCGA § 53-4-63 (a).

In determining whether a devise is to individuals or to a class, while it is true that a designation of the beneficiaries by names is not always and in itself conclusive, it is an earmark strongly indicative that the devise is to the named individuals as such; and unless a contrary intent of the testator can be gathered from the entire instrument, such individual designation will control.

Snellings v. Downer, 193 Ga. 340, 341 (2) (b) (18 S.E.2d 531) (1942).

If a gift is made to beneficiaries by name, prima facie the gift is not one to a class, but to the beneficiaries as individuals, even though the persons named may possess some quality in common; and if no contrary intention appears from the context or other parts of the instrument, the beneficiaries will take as individuals, and not as a class.

Id. at 345 (2) (b). No contrary intention indicating a class gift appears in Virginia's will. Thus, as these are individual gifts, the question is whether the statement that her named children take "PER CAPITA" includes a requirement that each child survive her in order for that child to receive the bequest, inasmuch as a requirement that the taker of a testamentary gift survive the testator is a "limitation" under OCGA § 53-4-63 (a). See Graham v. Patton, 231 Ga. 391, 393-395 (1) (202 S.E.2d 58) (1973); Powell v. Watkins, 221 Ga. 851, 852 (148 S.E.2d 303) (1966).

Of course,
[t]he primary objective in will interpretation is to ascertain the testator's intent. See OCGA § 53-4-55; Hood v. Todd, 287 Ga. 164, 166 (695 S.E.2d 31) (2010). To discover that intent, "[t]he court must look first to the 'four corners' of the will, " and "[w]here the language of a will is clear . . . and can be given legal effect as it stands, the court will not, by construction, give the will a different effect." Hood, 287 Ga. at 166 (695 S.E.2d 31) (citations and punctuation omitted).

Stewart v. Ray, 289 Ga. 679, 681 (2) (715 S.E.2d 679) (2011). And,

[i]n the construction of a will, the courts should look to that interpretation which carries out the provisions of the statute of distribution, rather than that which defeats them; that, in the absence of anything in the will to the contrary, the presumption is that the ancestor intended that her property should go where the law [of intestacy] carries it, which is supposed to be the channel of natural descent. To interrupt or disturb this descent or direct it in a different course, should require plain words to that effect.

Fleming v. First Union Nat'l Bank, 274 Ga. 527, 528 (555 S.E.2d 728) (2001) (Citations and punctuation omitted.) Georgia's statutory scheme governing intestacy provides that the heirs "in the first degree" of one who dies without a will, and who is not survived by a spouse, shall be the children of the decedent, "with the descendants of any deceased child taking, per stirpes, the share that child would have taken if in life." OCGA § 53-2-1 (c) (3).[3] See also In re Willof Lewis, 263 Ga. 349, 351 (1) (434 S.E.2d 472) (1993) ("In the absence of anything in the will indicating a contrary intent . . . it will be presumed that the testator intended a per stirpes distribution as would occur by law in the event of intestacy.") Thus, there must be "plain language in [Virginia's] will to overcome the ...

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