Opinion
24556.
SUBMITTED MARCH 12, 1968.
DECIDED APRIL 9, 1968.
Construction of will. Twiggs Superior Court. Before Judge Ward.
Joe W. Rowland, for appellants.
Irwin L. Evans, B. B. Hayes, E. L. Stephens, Jr., for appellees.
1. Language in a will leaving described property to "My three sisters and niece" is not ambiguous where the three sisters and niece are named in another item of the will and there is no contention that at the time the will was executed or at any time thereafter the testatrix had any other sister or niece in life.
2. Where a named beneficiary in a will predeceases the testatrix and leaves no issue surviving, the devise to the predeceased beneficiary lapses.
SUBMITTED MARCH 12, 1968 — DECIDED APRIL 9, 1968.
Willie Ivey Webster's will provided in part: "Item 3. I give and bequeath to my three sisters and my niece all the minerals rights that I have reserved from sale or lease of my land to be divided equally among the four if any of the four should die then the minerals rights shall be divided among those that are living. Item 4. The rest and residue of my property I desire to be divided among my three sisters and my niece as follows; Fifty Five (55%) percent to Mattie Stephens Ivey, Twenty (20) percent to Mrs. Adelene Ivey O'Quinn, Twenty (20) percent to Mrs. Louise Ivey Whitehurst and Five (5) percent to my niece Mary Hart Whitehurst." Mattie Stephens Ivey predeceased the testatrix leaving no children, and Mrs. Louise Ivey Whitehurst predeceased the testatrix, being survived by a daughter Mary Hart Whitehurst. The testatrix had had another sister, Mrs. Millie Ivey Claxton, who together with her husband and children predeceased the testatrix, but left at least 22 grandchildren who are named as defendants in the present action by the executor of the estate seeking a construction of the will and particularly the items quoted above. The trial court heard testimony of Mary Hart Whitehurst as to the circumstances surrounding the execution of the will and rendered judgment awarding Mrs. Adelene Ivey O'Quinn, in addition to her 20% of the residue of the estate provided for in Item 4 of the will, one-half of the 55 percent of Mattie Stephens Ivey and awarding Mary Hart Whitehurst, in addition to her five percent, the twenty percent of her mother Mrs. Louise Ivey Whitehurst and one-half of the 55 percent of Mattie Stephens Ivey. The grandchildren of Mrs. Millie Ivey Claxton appealed and enumerate as error the admission of parol evidence as to the intention of the testatrix as well as on the final judgment construing the will.
1. The first question to be decided is whether the will was ambiguous so as to permit the introduction of parol evidence to aid in its construction as is permitted by Code § 113-807. The trial court's judgment held in part: "In view of Item 3 of the will, the court allowed parol testimony to get to the intention of the testatrix." Assuming that Item 3 which provided for the distribution of mineral rights (when no mineral rights were owned by the testatrix at the time of her death) to three sisters and niece of the testatrix without naming them constitutes an ambiguity subject to explanation by parol (see Cheney v. Selman, 71 Ga. 384), yet where Item 4 of the will named the three sisters of the testatrix as well as the niece (and there is no contention that at the time the will was executed or at any time thereafter the testatrix had living any other sister or niece), when the whole will is examined there is no ambiguity. Carson v. Searcy, 66 Ga. 550. It has long been held that the term "children" in a will does not include "grandchildren" unless there be something in the will to indicate such an intention by the testator. See White v. Rowland, 67 Ga. 546, 554 (44 AR 731), and citations. The fact that there were "grand-nieces" does not require a different result since "niece" in the absence of any other fact appearing would not include "grand-nieces." Thus, the trial court erred in admitting parol evidence to aid in construing the will.
2. The sole remaining question to be decided is the proper disposition of that part of the residue of the estate given under Item 4 of the will to Mattie Stephens Ivey and Louise Ivey Whitehurst.
Mattie Stephens Ivey predeceased the testatrix leaving no issue. The provisions of Item 4, which left various shares of the residue of the estate to named persons in unequal shares, nothing else appearing, must be construed as a devise to individuals and not to a class. Accordingly, the death of Mattie Stephens Ivey prior to the testatrix without issue surviving caused such devise to her to lapse. Under the decisions in Snellings v. Downer, 193 Ga. 340 ( 18 S.E.2d 531, 139 ALR 860); and Collier v. Citizens Southern Nat. Bank, 206 Ga. 857 ( 59 S.E.2d 385), this part of the estate would go to the heirs at law of the testatrix. Therefore, the share of the estate left by the will to Mattie Stephens Ivey would have to be divided into three shares, one share going to the surviving sister of the testatrix, one share going to the daughter of Mary Louise Whitehurst, and one share going to the grandchildren of Millie Ivey Claxton.
The devise to Louise Ivey Whitehurst in Item 4 did not lapse and was properly awarded to her surviving daughter Mary Hart Whitehurst.
Judgment reversed. All the Justices concur.