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DeMott v. DeMott

Court of Appeals of Georgia, Fifth Division

October 30, 2019

DEMOTT, AS EXECUTOR OF THE ESTATE OF RICHARD ERMAN DEMOTT et al.
v.
DEMOTT

          MCFADDEN, C. J., MCMILLIAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS

          MCMILLIAN, PRESIDING JUDGE

         In this 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.[1] 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.

         The construction of a will is a question of law, [2] 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.[3]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 gatherings.[4]

         In Item 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.)

         On 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 appeal followed.

         Douglas 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 estate.

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).

         Turning 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.

         In contrast, Douglas points us to the sentence immediately following:

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.)

         The 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 ...


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