DEMOTT, AS EXECUTOR OF THE ESTATE OF RICHARD ERMAN DEMOTT et al.
MCFADDEN, C. J., MCMILLIAN, P. J., and SENIOR APPELLATE JUDGE
MCMILLIAN, PRESIDING JUDGE
declaratory judgment action, Douglas DeMott, as executor of
the estate of Richard DeMott, appeals from the trial
court's order granting partial summary judgment in favor
of plaintiff Cynthia DeMott regarding the interpretation of
her late husband's will, in particular, the conditions
placed on a life estate devised to Cynthia. In his sole
enumeration of error, Douglas asserts that the trial court
erred in construing the plain language of the will. As more
fully set forth below, we find that the trial court erred in
finding the language of the will unambiguous and reverse.
construction of a will is a question of law,  which we review
de novo. See Blalock v. Cartwright, 300 Ga. 884, 885
(I) (799 S.E.2d 225) (2017). The record shows that Richard
and Cynthia married on June 28, 2013, and Richard
unfortunately died less than two years later. His brother
Douglas was appointed executor of his will.Prior to his
death, Richard and Cynthia lived in the "McNeal
House" at 251 DeMott Road in Hartsfield, Georgia. The
McNeal House is one of fourteen houses on a large piece of
land owned by a company known as Gin Creek, LLC, which
Richard and Douglas owned and used to host weddings and other
II (a) of his will, Richard devised a life estate in the
McNeal House to Cynthia as follows:
It is my desire that my spouse, Cynthia Slocumb DeMott, shall
have the right to live [in] our home, subject to any
indebtedness secured thereby, for as long as she so desires
provided that she resides in the home as her primary
residence for at least nine months out of the year and so
long as she remains unmarried. At my spouse's death,
remarriage or at such time as she fails to live in
our home as her primary residence for at least nine months
out of the year, all interest in my home shall pass to Gin
Creek, LLC. (Emphasis supplied.)
March 13, 2017, Cynthia received a letter from Douglas'
counsel alleging that she had only resided in the McNeal
House for a total of 60 days in the prior year and demanding
possession of the property. Cynthia refused and filed a
complaint for declaratory judgment, seeking a construction
and interpretation of the will regarding her life estate. In
the course of the proceedings, the parties stipulated that
the will is unambiguous, such that the trial court should
interpret the will as a matter of law without parol evidence.
The parties also agreed that the pending motion for
interlocutory injunction would be converted into a motion for
partial summary judgment. Following a hearing, the trial
court granted partial summary judgment in favor of Cynthia,
finding that the will does not require Cynthia to physically
live in the home for any amount of time so long as she
intends to reside in the home as her primary
residence for at least nine months out of the year. This
asserts that the trial court erred in its interpretation and
urges us to find that the will requires Cynthia to physically
live in the McNeal House for at least nine months out of the
year. On the other hand, Cynthia maintains that as long as
she intends to use the McNeal House as her primary residence,
even if she physically stays elsewhere, she retains the life
The cardinal rule in construing the provisions of a will is
to determine the intent of the testator. It is well settled,
however, that there in no room for construction when the
meaning of the words used in the will is so plain and obvious
that it cannot be misunderstood. This is true even if the
words used in the will express a meaning entirely at variance
with the real intention of the testator. The plain and
unambiguous terms of a will must control and parol evidence
cannot be used to contradict or give new meaning to that
which is expressed clearly in the will.
(Citations and punctuation omitted.) Smith v.
Ashford, 298 Ga 390, 393 (1) (782 S.E.2d 251) (2016).
Equally important, "[t]he entire document is to be taken
together, and operation should be given to every part of
it." (Citation omitted.) See v. Mitchell, 287
Ga. 551, 552 (700 S.E.2d 338) (2010). Where the will is
ambiguous, the court should apply the rules of construction
and may "consider parol evidence of circumstances
surrounding the testator at the time of execution of the will
in order to ascertain the testator's intent."
Smith, 298 Ga. at 393 (1).
to the pertinent terms of the will, we are unpersuaded by the
parties' stipulation below that the will is unambiguous.
The will provides that Cynthia has a life estate in the
McNeal House "for as long as she so desires" and
that the life estate is conditioned upon, among other things,
"that she reside in the home as her primary residence
for at least nine months out of the year." In support of
her interpretation, Cynthia relies on the legal definition of
"resides" and points to evidence that she held out
the McNeal House as her legal residence, including receiving
her mail and bills there and listing the house as her primary
residence on her tax returns. We find that the first sentence
of Item II (a) might reasonably be interpreted to support
Cynthia's assertion that no physical presence in the
McNeal House is required so long as she intends to use the
house as her primary residence.
contrast, Douglas points us to the sentence immediately
At my spouse[']s death, remarriage or at such time she
fails to live in our home as her primary residence
for at least nine months out of the year, all interest in my
home shall pass to Gin Creek, LLC. (Emphasis supplied.)
phrase "live in our home" is not a legal term and
in connection with a house, the verb "to live"
commonly means "to occupy a house: DWELL, RESIDE."
Webster's New Third International Dictionary 1323 (1966).
Douglas also asserts that the following subparagraph further
indicates Richard's intention ...