Carnegie v. First National Bank

129 S.E.2d 780, 218 Ga. 585, 1963 Ga. LEXIS 267
CourtSupreme Court of Georgia
DecidedJanuary 16, 1963
Docket21846
StatusPublished
Cited by11 cases

This text of 129 S.E.2d 780 (Carnegie v. First National Bank) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carnegie v. First National Bank, 129 S.E.2d 780, 218 Ga. 585, 1963 Ga. LEXIS 267 (Ga. 1963).

Opinion

Grice, Justice.

The issues for determination here are whether [586]*586an adopted son of one of the testatrix’s grandsons is entitled to any interest in certain property under her will and, if so, the quantity of that interest.

The testatrix, Mrs. Lucy C. Carnegie, was a resident of the State of Pennsylvania. She executed her will in 1912 and made two codicils in 1913. Upon her death on January 16, 1916,. her will, with these codicils, was duly probated in both Pennsylvania and Georgia. In addition to disposing of other property the will devised Cumberland Island, Georgia, to trustees, set forth the purposes and uses of this trust and directed final disposition of that Island property. The First National Bank of Brunswick has since become trustee of this trust.

The testamentary provision in question is the second paragraph of the first codicil: “In the event the trust herein created for said Island property, or any portion thereof, has not terminated before the death of the last survivor of my said children other than my son William Coleman Carnegie, the said trust shall then terminate and the whole or any portion thereof remaining unsold shall be vested, but not before, absolutely, in such persons and for such estates and proportions as would take the same under the intestate laws of the State of Pennsylvania had I died intestate possessed thereof, and all my named children had survived me and died intestate, saving and excepting the children of my son William Coleman Carnegie shall not be entitled to any interest therein or any part thereof; nor shall the wife of said William Coleman Carnegie be entitled to any interest therein or any part thereof under the said intestate laws or under any other laws of said State of Pennsylvania; nor shall the husband of any of my daughters be entitled to any interest therein as tenant by courtesy.”

The death on April 15, 1962, of Florence C. Perkins, the last surviving child of the testatrix, precipitated this phase of litigation over Mrs. Carnegie’s will. Previously this court has considered her will upon different questions. Rockefeller v. First Nat. Bank of Brunswick, 213 Ga. 493 (100 SE2d 279); and Rockefeller v. First Nat. Bank of Brunswick, 213 Ga. 766 (102 SE2d 28).

Since no sale or distribution of the Island property had been made prior to the death of the last surviving child, the First National Bank of Brunswick, as trustee, filed in the Superior Court [587]*587of Camden County its bill for direction, praying, among other matters, that determination be made as to the persons entitled to the corpus of the trust property, namely Cumberland Island.

All of the claimants were made parties defendant. The testatrix had eight children but one son was expressly excluded by the will and two others left no descendants, so only five shares resulted. That of Thomas Morrison Carnegie is the only one in issue here. The salient genealogical facts as to his branch follow.

Thomas Morrison Carnegie died in 1944 and his wife died in 1952. His surviving children were (1) Thomas Morrison Carnegie, Jr., who died in 1954 and (2) Carter Beggs Carnegie, who died in 1957. The first, Thomas Morrison Carnegie, Jr., left no wife but was survived by two children, Thomas Morrison Carnegie, III, and Andrew Carnegie, III. The second, Carter Beggs Carnegie, was survived by his widow, now Polly Carnegie Pence, and an adopted son, Henry Carter Carnegie. Carter Beggs Carnegie had no natural children, but, on June 18, 1956, adopted the adult son of his wife by a prior marriage.

Trial was before the judge without a jury and, with no material facts in dispute on the issues involved here, resulted in the ruling that the adopted son is a remainderman under Mrs. Carnegie’s will and is entitled to a one-tenth interest in the property (one-half of the Thomas Morrison Carnegie branch’s share) and that Thomas Morrison Carnegie, III, and Andrew Carnegie, III, is each entitled to a one-twentieth interest in the property (the other one-half of the Thomas Morrison Carnegie branch’s share). It further ruled that the widow of Carter Beggs Carnegie, Polly Carnegie Pence, is not a remainderman under the will and is not entitled to any interest in the property.

To the decree declaring Henry Carter Carnegie a remainder-man under Mrs. Carnegie’s will and entitled to an undivided one-tenth interest in the Cumberland Island property and declaring Thomas Morrison Carnegie, III, and Andrew Carnegie, III, also remaindermen and entitled to a one-twentieth interest each in such property, the last two named filed an amended motion for new trial, contending that by a proper construction of the quoted portion of Mrs. Carnegie’s will, Henry Carter Carnegie, the adopted son, is not a remainderman, and that they are entitled to the entire Thomas Morrison Carnegie branch’s share [588]*588of such property. All of the grounds of their motion for new trial raise that single issue. Error is assigned by them upon the overruling of their motion for new trial.

In determining whether Henry Carter Carnegie, an adopted person, is a remainderman of the trust established by Mrs. Carnegie’s will, we must first decide what law is applicable to that issue.

(a) As to whether the law of Pennsylvania or that of Georgia controls, the parties here agree that since the trust involves property located in Georgia, Georgia law is to be followed, except that since the will’s formula for identifying the remaindermen is the intestate law of Pennsylvania, that law must be used to ascertain them. For this reason our own court’s decisions, based on Georgia law, as to whether certain terms of a will are intended to refer to natural or blood relationships to the exclusion of adopted children, are not applicable. See in this connection such cases as Comer v. Comer, 195 Ga. 79 (23 SE2d 420, 144 ALR 644); Brookins v. Citizens & Southern Nat. Bank, 205 Ga. 128 (52 SE2d 461); and Wilson v. Ingram, 207 Ga. 271 (61 SE2d 126). For this same reason we are not concerned with Georgia statutes relating to descent and distribution or to adoption. In all other respects Georgia law controls. See Sears v. Minchew, 212 Ga. 417 (93 SE2d 746).

(b) But the parties disagree as to whether the Pennsylvania intestate law to be applied is that in force in 1916 when Mrs. Carnegie died and her will took effect or that in force in 1962 when her last surviving child died and the trust terminated. As to this question, the two natural sons contend that under Georgia law a will is to be construed by the law existing when, upon the testator’s death, the will takes effect, and assert that therefore the intestate law of Pennsylvania as of 1916 must be used to identify the remaindermen. They refer to such cases as Hertz v. Abrahams, 110 Ga. 707 (2) (36 SE 409, 50 LRA 361); and Wilson v. Ingram, 207 Ga. 271 (2), supra. On the other hand, the adopted son maintains that under the Pennsylvania intestate law existing at the time of either event, the testatrix’s will taking-effect in 1916 or the trust terminating in 1962, he is a remainder-man.

After consideration of this question, we have concluded that [589]*589the applicable intestate law of Pennsylvania is that which was of force when the trust terminated in 1962, and therefore it is not necessary to consider that which existed in 1916.

In reaching this conclusion we, of course, recognize the rule that a will is to be construed under the law in effect at the testator’s death.

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Bluebook (online)
129 S.E.2d 780, 218 Ga. 585, 1963 Ga. LEXIS 267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carnegie-v-first-national-bank-ga-1963.