Piccione v. Arp

806 S.E.2d 589, 302 Ga. 270
CourtSupreme Court of Georgia
DecidedOctober 16, 2017
DocketS17A0782
StatusPublished
Cited by2 cases

This text of 806 S.E.2d 589 (Piccione v. Arp) 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
Piccione v. Arp, 806 S.E.2d 589, 302 Ga. 270 (Ga. 2017).

Opinion

HINES, Chief Justice.

Gregory and Adam Piccione (“the Picciones”), grandchildren of testator Virginia Arp (“Virginia”) and children of Donna Piccione (“Donna”), appeal from the superior court’s denial of their motion for summary judgment in this action against their three uncles, Sam and Dwayne Arp, individually and in their capacities as executors of Virginia’s estate, and David Arp. For the reasons that follow, we affirm.

Virginia executed a will in 2002. It provides for her burial and the payment of her debts, and the sole paragraph that sets forth the disposition of her property states in toto: “I give, bequeath and devise unto my children, Sam Arp, Donna Piccione, David Arp and Dwayne Arp, all of the property that I may own at the time of my death, both real and personal, of every kind and description and wherever located, PER CAPITA.” (Emphasis in original.) Donna died in 2006, and Virginia died in 2013. The executors of Virginia’s estate divided it among Virginia’s three surviving children (i.e., themselves and David). The Picciones, contending that they had a combined one-fourth interest in the property that comprised Virginia’s estate, sued in superior court, asserting actions for conversion, fraud, and trespass regarding those property interests,1 and moved for summary judgment, which the trial court denied, concluding that Virginia’s use of the words “PER CAPITA” was a “limitation” under the anti-lapse statute, OCGA § 53-4-64 (a);2 the anti-lapse provisions of the statute therefore did not apply to the gifts to Virginia’s children; as Donna [271]*271predeceased Virginia, the testamentary gift to Donna lapsed; and thus, the Picciones had no property interest upon which to base their claims. The trial court issued a certificate of immediate review, and this Court granted the Picciones’ application for interlocutory appeal. See OCGA § 5-6-34 (b).

The trial court was correct that Donna’s predeceasing Virginia constituted a lapse. “A lapsed legacy or devise is one, unrevoked by the testator, which was good at the time the will was made but which fails to take effect because of the death without issue or other incapacity of the beneficiary in the lifetime of the testator.” 1 Sara-jane Love, Redfearn, Wills and Administration in Georgia, § 156 (5th ed. 1988). See also Collier v. Citizens & Southern Nat. Bank, 206 Ga. 857, 858-859 (2) (59 SE2d 385) (1950).

At common law, and under the law of this State before the act of 1836 ([former] Code, § 113-812), if the legatee died before the death of the testator the legacy lapsed, whether the legatee left issue or not. [Since 1836], if there be issue, it takes as substituting legatee [under the provisions of the anti-lapse statute]. [Cit.]

Sanders v. First Nat. Bank, 189 Ga. 450, 453 (1) (6 SE2d 294) (1939). The purpose of the anti-lapse statute is to “obviate the effect of lapse by carrying out what the legislature has presumed the testator’s intent would have been as to the disposition of the [testamentary] gift had [the testator] foreseen the possibility that the taker named in the will would die during the [testator’s] lifetime.” Verner F. Chaffin, Studies in the Georgia Law of Decedents’ Estates and Future Interests, p. 212 (1978). See also Robinson v. Ray, 254 Ga. 237, 238 (1) (327 SE2d 721) (1985). When first enacted, Georgia’s anti-lapse statute was not as it is now, and notably it did not apply to class gifts until it was set forth in the Revised Probate Code of 1998, which enacted OCGA § 53-4-64 in its current form; the anti-lapse statute now applies to testamentary gifts to both individuals and classes, albeit with differing language regarding the types of gifts. See 1 Mary F. [272]*272Radford, Redfearn, Wills and Administration in Georgia, § 8:5 (n. 5) (6th ed. 2000) (“Prior to the enactment of the Revised Probate Code of 1998, case law would have directed a different result — that is, that the lapsed gift would be shared among the other members of the class of the testator’s children rather than pass to the deceased child’s descendants. [Cits.]”); 1 Sarajane Love, supra.

The trial court was correct in determining that the bequests in Virginia’s will constituted individual gifts to her four named children, and thus were governed by OCGA § 53-4-63 (a).

In determining whether a devise is to individuals or to a class, while it is true that a designation of the beneficiaries by names is not always and in itself conclusive, it is an earmark strongly indicative that the devise is to the named individuals as such; and unless a contrary intent of the testator can be gathered from the entire instrument, such individual designation will control.

Snellings v. Downer, 193 Ga. 340, 341 (2) (b) (18 SE2d 531) (1942).

If a gift is made to beneficiaries by name, prima facie the gift is not one to a class, but to the beneficiaries as individuals, even though the persons named may possess some quality in common; and if no contrary intention appears from the context or other parts of the instrument, the beneficiaries will take as individuals, and not as a class.

Id. at 345 (2) (b). No contrary intention indicating a class gift appears in Virginia’s will. Thus, as these are individual gifts, the question is whether the statement that her named children take “PER CAPITA” includes a requirement that each child survive her in order for that child to receive the bequest, inasmuch as a requirement that the taker of a testamentary gift survive the testator is a “limitation” under OCGA § 53-4-63 (a). See Graham v. Patton, 231 Ga. 391, 393-395 (1) (202 SE2d 58) (1973); Powell v. Watkins, 221 Ga. 851, 852 (148 SE2d 303) (1966).

Of course,

[t]he primary objective in will interpretation is to ascertain the testator’s intent. See OCGA § 53-4-55; Hood v. Todd, 287 Ga. 164, 166 (695 SE2d 31) (2010). To discover that intent, “[t]he court must look first to the ‘four corners’ of the will,” and “[w]here the language of a will is clear . . . and can be [273]*273given legal effect as it stands, the court will not, by construction, give the will a different, effect.” Hood, 287 Ga. at 166 (citations and punctuation omitted).

Stewart v. Ray, 289 Ga. 679, 680 (2) (715 SE2d 679) (2011). And,

[i]n the construction of a will, the courts should look to that interpretation which carries out the provisions of the statute of distribution, rather than that which defeats them; that, in the absence of anything in the will to the contrary, the presumption is that the ancestor intended that her property should go where the law [of intestacy] carries it, which is supposed to be the channel of natural descent.

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Related

Carol Ramona Buchanan v. Samille B. Hannon
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PICCIONE v. ARP, Exr.
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Bluebook (online)
806 S.E.2d 589, 302 Ga. 270, Counsel Stack Legal Research, https://law.counselstack.com/opinion/piccione-v-arp-ga-2017.