Folsom v. Rowell

281 Ga. 494, 640 S.E.2d 5 (2007)

 

RULE:

The plain language of a will cannot be changed by speculation as to what might have been the motive prompting the testator in using that language. Courts are without authority to rewrite by construction an unambiguous will, for to do that would be to substitute the will of the court for that of the testator. It is no proper concern of the court whether the disposition of one's property by will is wise or unwise, is justified or unjustified, so long as such disposition is legal and the intention of the testator is certain and clearly expressed by the terms of the will. Although the court may regard as frivolous or insufficient the reasons prompting the testator to make a bequest, yet, when the intention to make the bequest is too plain to be challenged, it is the duty of the court to give effect to it and thus allow the expressed wish of the testator to stand. 

FACTS:


The testator died in 1960. He bequeathed a life estate to his youngest child, who was handicapped, with the remainder to his children who took care of her. If none of the children provided for her, the remainder would go to the person who did, even if he or she was an "outsider."  The court found that temporary care by a child of Testator permanently prevented an outsider who subsequently cared for the life tenant from sharing in the remainder. Testator's handicap child, A. Folsom, lived in the home of her sister Lillian Rowell, now deceased, along with Ms. Rowell's children (Rowell heirs). From 1973 until hear death in 2001, she resided with other grandchildren of the testator too, among whom was Linda Smith. Concluding that only the Rowell heirs could take under Paragraph 4, the superior court granted partial summary judgment in favor of the administrator, granted his motion for construction, denied summary judgment as to Ms. Smith, and denied the other heirs' motion for construction. Arguing that this ruling is contrary to the Testator's intention, Ms. Smith requests this Court to resolve an ambiguity which is allegedly present in Paragraph 4, by substituting and inferring certain language. In related cases involving the construction of the will, the superior court granted partial summary judgment in favor of an administrator, granted his motion for construction, denied summary judgment as to a granddaughter of the testator, and denied two grandsons' motion for construction. It denied the granddaughter's and the grandsons' motion for reconsideration. On appeal, court affirmed the trial court's decision.

ISSUE:

Did the superior court err in ruling that temporary care by a child of Testator permanently prevented an outsider who subsequently cared for the life tenant from sharing in the remainder?

ANSWER:

No.

CONCLUSION:

The trial court properly ruled that once any of the testator's children provided care, only the remainder interests of other children could vest, not those of outsiders who provided care. The court could not rewrite this unambiguous provision. Finally, the term "outsider" applied to anyone other than the testator's children. Nothing in the will showed an intent to include grandchildren as "children." Testator's disposition in this case is not illegal or unenforceable. The plain language of Paragraph 4 indicates that Testator simply had a strong preference for his children to provide the requisite care and to be the only persons to receive the ultimate distribution of his estate. That provision reveals an intention to motivate them to care for their sister. By rewarding as fully as possible, those of his children who would do so, even though any other care givers would be excluded as a result.

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