Linkous v. National Bank of Georgia

Supreme Court of Georgia

Linkous v. National Bank of Georgia

274 S.E.2d 469, 247 Ga. 274, 1981 Ga. LEXIS 634

CourtSupreme Court of Georgia

DecidedFebruary 10, 1981

Docket37024, 37025

StatusPublished

Cited by6 cases

This text of 274 S.E.2d 469 (Linkous v. National Bank of Georgia) 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

Linkous v. National Bank of Georgia, 274 S.E.2d 469, 247 Ga. 274, 1981 Ga. LEXIS 634 (Ga. 1981).

Pincite

Opinions

Undercofler, Justice.

In this case, we are called upon to examine the validity of an “in terrorem” clause forbidding any challenge to a will under penalty of forfeiture. Such clauses are permitted by statute, Code Ann. § 113-820, but are not favored in the law and, like all restrictions, must be strictly construed, Boykin v. Bradley, 192 Ga. 212 (14 SE2d 734) (1941). The trial court held the clause in this will invalid. We affirm.

National Bank of Georgia, as executor and trustee under the will of Nelson T. Levings, filed its petition for a declaratory judgment as to certain aspects of the will not now here before us. Guardians ad litem were appointed to represent various groups of heirs. When the trial court made the initial determination that the in terrorem clause was invalid, those guardians interested in its enforcement appealed.

Code Ann. § 113-820 provides: “A condition in terrorem shall be void, unless there is a limitation over to some other person; in which event the latter shall take . . .” (Emphasis supplied.) Article Sixteenth of Levings’ will contains the following: “If any beneficiary under this, my will, shall in any manner, directly or indirectly attempt to contest or oppose the probate or validity of this, my will, or any codicil thereto, in any court, or commence or prosecute any legal proceedings of any kind in any court to set aside this, my will, or any codicil thereto, then in that event such beneficiary shall forfeit and cease to have any right or interest whatsoever under this, my will, or under any codicil hereto, or in any portion of my estate and, in such event, I hereby direct that my property and estate shall be disposed of in all respects as if such beneficiary had predeceased me. ” (Emphasis supplied.) Appellants contend that this article contains a specific limitation over such that the in terrorem clause must be upheld. We disagree.

In Broach v. Hester, 217 Ga. 59, 62 (121 SE2d 111) (1961), we quoted 96 CJS Wills, § 992: “‘A condition in.terrorem will be sustained where the will especially directs that the share of the person violating the condition shall fall into the residue; but a mere general gift of the residue, or a gift over to the testator’s estate, is not such a gift over as will take the case out of the operation of the foregoing rule as to conditions in terrorem, although there is some authority to the contrary. A general residuary clause is not of itself [275]*275regarded as a substitute for, or as the equivalent of, a gift over; and a gift to heirs may not be a gift over.’ ” There was a specific gift over to the residuum, to which there were clearly named beneficiaries in Fuller v. Fuller, 217 Ga. 316 (122 SE2d 234) (1961), and the in terrorem clause was sustained. The same principles apply here.

Decided February 10, 1981 Rehearing denied March 12, 1981. Powell, Goldstein, Frazer & Murphy, William Linkous, Jr., for appellant. Smith, Cohen, Ringel, Kohler & Martin, Ronald W. Hartley, Hurt, Richardson, Garner, Todd & Cadenhead, James H. Morgan, Rogers & Hardin, Joseph C. Miller, Northcutt, Edwards, Germano, Nix & Page, James A. Nix, for appellee.

The only language which would arguably give rise to a limitation over is “in such event, I hereby direct that my property and estate shall be disposed of in all aspects as if such beneficiary had predeceased me.” The will provides for such a contingency, but does so in an indefinite manner¹ that does not meet the requirement that there be a specific “limitation over to some other person,” Code Ann. § 113-820. Compare also Taylor v. Rapp, 217 Ga. 654 (124 SE2d 271) (1962), and Lanier v. Lanier, 218 Ga. 137 (126 SE2d 776) (1962). Since we have held that the trial court correctly ruled that the in terrorem clause is invalid, we need not reach the remaining enumerations of error.

Judgment affirmed.

All the Justices concur, except Hill, P. J., who concurs specially and Marshall, J., who concurs in the judgment only.

Free access — add to your briefcase to read the full text and ask questions with AI

Undercofler, Justice.

In this case, we are called upon to examine the validity of an “in terrorem” clause forbidding any challenge to a will under penalty of forfeiture. Such clauses are permitted by statute, Code Ann. § 113-820, but are not favored in the law and, like all restrictions, must be strictly construed, Boykin v. Bradley, 192 Ga. 212 (14 SE2d 734) (1941). The trial court held the clause in this will invalid. We affirm.

National Bank of Georgia, as executor and trustee under the will of Nelson T. Levings, filed its petition for a declaratory judgment as to certain aspects of the will not now here before us. Guardians ad litem were appointed to represent various groups of heirs. When the trial court made the initial determination that the in terrorem clause was invalid, those guardians interested in its enforcement appealed.

Code Ann. § 113-820 provides: “A condition in terrorem shall be void, unless there is a limitation over to some other person; in which event the latter shall take . . .” (Emphasis supplied.) Article Sixteenth of Levings’ will contains the following: “If any beneficiary under this, my will, shall in any manner, directly or indirectly attempt to contest or oppose the probate or validity of this, my will, or any codicil thereto, in any court, or commence or prosecute any legal proceedings of any kind in any court to set aside this, my will, or any codicil thereto, then in that event such beneficiary shall forfeit and cease to have any right or interest whatsoever under this, my will, or under any codicil hereto, or in any portion of my estate and, in such event, I hereby direct that my property and estate shall be disposed of in all respects as if such beneficiary had predeceased me. ” (Emphasis supplied.) Appellants contend that this article contains a specific limitation over such that the in terrorem clause must be upheld. We disagree.

In Broach v. Hester, 217 Ga. 59, 62 (121 SE2d 111) (1961), we quoted 96 CJS Wills, § 992: “‘A condition in.terrorem will be sustained where the will especially directs that the share of the person violating the condition shall fall into the residue; but a mere general gift of the residue, or a gift over to the testator’s estate, is not such a gift over as will take the case out of the operation of the foregoing rule as to conditions in terrorem, although there is some authority to the contrary. A general residuary clause is not of itself [275]*275regarded as a substitute for, or as the equivalent of, a gift over; and a gift to heirs may not be a gift over.’ ” There was a specific gift over to the residuum, to which there were clearly named beneficiaries in Fuller v. Fuller, 217 Ga. 316 (122 SE2d 234) (1961), and the in terrorem clause was sustained. The same principles apply here.

Decided February 10, 1981 Rehearing denied March 12, 1981. Powell, Goldstein, Frazer & Murphy, William Linkous, Jr., for appellant. Smith, Cohen, Ringel, Kohler & Martin, Ronald W. Hartley, Hurt, Richardson, Garner, Todd & Cadenhead, James H. Morgan, Rogers & Hardin, Joseph C. Miller, Northcutt, Edwards, Germano, Nix & Page, James A. Nix, for appellee.

The only language which would arguably give rise to a limitation over is “in such event, I hereby direct that my property and estate shall be disposed of in all aspects as if such beneficiary had predeceased me.” The will provides for such a contingency, but does so in an indefinite manner¹ that does not meet the requirement that there be a specific “limitation over to some other person,” Code Ann. § 113-820. Compare also Taylor v. Rapp, 217 Ga. 654 (124 SE2d 271) (1962), and Lanier v. Lanier, 218 Ga. 137 (126 SE2d 776) (1962). Since we have held that the trial court correctly ruled that the in terrorem clause is invalid, we need not reach the remaining enumerations of error.

Judgment affirmed.

All the Justices concur, except Hill, P. J., who concurs specially and Marshall, J., who concurs in the judgment only.

Cite This Page — Counsel Stack

Bluebook (online)

274 S.E.2d 469, 247 Ga. 274, 1981 Ga. LEXIS 634, Counsel Stack Legal Research, https://law.counselstack.com/opinion/linkous-v-national-bank-of-georgia-ga-1981.

Opinions

Related

Cite This Page — Counsel Stack