residuary clause in Georgia

1942In Silcox v. Nelson, 24 Ga. 84 (2), 90, on which counsel for the heirs particularly relies, the ruling that “a legacy lapsed does not fall into the residuum, where it is manifest from the will that the testator did not intend that the residuary legatees, from the nature of the bequests or devises to them, should take any part of a legacjq” was based upon the fact that “the residuum is given in distinct parcels,” and each residuary legatee was given particularly described property, so that under the rule that “it is to be presumed in such case that [the testator] had expressed all that each res

1920The decision was therefore placed upon the ground that the words in the residuary clause so narrowed the title of the residuary legatees as to exclude them from taking the lapsed legacies, — much the same principle upon which Silcox v. Nelson, supra, was decided.

1993Id. at 206 .

1991Appellee’s contention that the renunciation should not be permitted because it was contrary to the decedent’s intent to will the stock to his wife is without merit because the decedent is presumed to have executed his will with knowledge of the law that entitled his heirs to disclaim his testamentary bequests, see Carnegie v. First Nat. *546 Bank, 218 Ga. 585, 590-591 (1) (d) ( 129 SE2d 780 ) (1963), and thus was aware that his estate plan could be altered after his death if his beneficiaries exercised their renunciation right.

1963Bank of Brunswick v. Stewart, 215 Ga. 141 ( 109 SE2d 606 ).

1963Bank of Brunswick v. Stewart, 215 Ga. 141 ( 109 SE2d 606 ).

1944I. 132 ( 115 Atl. 716 ), the residuary clause provided: “All the rest and residue of my estate I give . . to my said wife and to my sons and daughters . . share and share alike, per stirpes and not per capita.” The wife was a second wife, and not the mother of the five children.

1942E. 1230), the controlling principles are that “the actual purpose of the testator, so far as it can be ascertained, must be given effect,” and “the presumption against .intestacy of any part of the estate.” With reference to the language in some decisions, that a bequest which is part of the residue in the residuary clause can not “fall into the residue, because it is a part of the residue, and it must pass as intestate estate” (Lyman v. Coolidge, 176 Mass. 7 , 56 N. E. 831 ; Dresel v. King, 198 Mass. 546 , 85 N. E. 77 , 126 Am.

1942E. 1230), the controlling principles are that “the actual purpose of the testator, so far as it can be ascertained, must be given effect,” and “the presumption against .intestacy of any part of the estate.” With reference to the language in some decisions, that a bequest which is part of the residue in the residuary clause can not “fall into the residue, because it is a part of the residue, and it must pass as intestate estate” (Lyman v. Coolidge, 176 Mass. 7 , 56 N. E. 831 ; Dresel v. King, 198 Mass. 546 , 85 N. E. 77 , 126 Am.

1942Williams v. Whittle, 50 Ga. 523, 525 ; Hughes v. Allen, 31 Ga. 483, 489, 491 ; Word v. Mitchell, 32 Ga. 623, 624 ; Thweatt v. Redd, 50 Ga. 181 (2), 191; 4 Page on Wills (ed. 1941), 192, § 1428, and cit.; 69 C.

1942Williams v. Whittle, 50 Ga. 523, 525 ; Hughes v. Allen, 31 Ga. 483, 489, 491 ; Word v. Mitchell, 32 Ga. 623, 624 ; Thweatt v. Redd, 50 Ga. 181 (2), 191; 4 Page on Wills (ed. 1941), 192, § 1428, and cit.; 69 C.

1942Williams v. Whittle, 50 Ga. 523, 525 ; Hughes v. Allen, 31 Ga. 483, 489, 491 ; Word v. Mitchell, 32 Ga. 623, 624 ; Thweatt v. Redd, 50 Ga. 181 (2), 191; 4 Page on Wills (ed. 1941), 192, § 1428, and cit.; 69 C.

1942E. 1230), the controlling principles are that “the actual purpose of the testator, so far as it can be ascertained, must be given effect,” and “the presumption against .intestacy of any part of the estate.” With reference to the language in some decisions, that a bequest which is part of the residue in the residuary clause can not “fall into the residue, because it is a part of the residue, and it must pass as intestate estate” (Lyman v. Coolidge, 176 Mass. 7 , 56 N. E. 831 ; Dresel v. King, 198 Mass. 546 , 85 N. E. 77 , 126 Am.

1942E. 1230), the controlling principles are that “the actual purpose of the testator, so far as it can be ascertained, must be given effect,” and “the presumption against .intestacy of any part of the estate.” With reference to the language in some decisions, that a bequest which is part of the residue in the residuary clause can not “fall into the residue, because it is a part of the residue, and it must pass as intestate estate” (Lyman v. Coolidge, 176 Mass. 7 , 56 N. E. 831 ; Dresel v. King, 198 Mass. 546 , 85 N. E. 77 , 126 Am.

1942See also West v. West, 89 Ind. 529 ; Holbrook v. McCleary, 79 Ind. 167 ; Gray v. Bailey, 42 Ind. 349 ; Hedges v. Payne, 85 Ind. *349 App. 394 ( 154 N. E. 293 ; Waln’s Estate, 156 Pa. 194, 197 ( 27 Atl. 60 ); Aitken v. Sharp, 93 N. J.

1942While this course of reasoning has some apparent force where the residuum consists of a definite sum or specific property, and where it might be assumed that the testator by the residuary clause intended to make a definite bequest, it is difficult to appreciate the force of the reason in such a case as the present one, where the residuum . . consists of a certain portion of an estate of unknown value, and where there seems no good reason for withholding application to the residuary clause and lapsed legacy of the principles ordinarily covering such a situation.” In such cases, as was said in C

1942While this course of reasoning has some apparent force where the residuum consists of a definite sum or specific property, and where it might be assumed that the testator by the residuary clause intended to make a definite bequest, it is difficult to appreciate the force of the reason in such a case as the present one, where the residuum . . consists of a certain portion of an estate of unknown value, and where there seems no good reason for withholding application to the residuary clause and lapsed legacy of the principles ordinarily covering such a situation.” In such cases, as was said in C

1942See also West v. West, 89 Ind. 529 ; Holbrook v. McCleary, 79 Ind. 167 ; Gray v. Bailey, 42 Ind. 349 ; Hedges v. Payne, 85 Ind. *349 App. 394 ( 154 N. E. 293 ; Waln’s Estate, 156 Pa. 194, 197 ( 27 Atl. 60 ); Aitken v. Sharp, 93 N. J.

1942See also West v. West, 89 Ind. 529 ; Holbrook v. McCleary, 79 Ind. 167 ; Gray v. Bailey, 42 Ind. 349 ; Hedges v. Payne, 85 Ind. *349 App. 394 ( 154 N. E. 293 ; Waln’s Estate, 156 Pa. 194, 197 ( 27 Atl. 60 ); Aitken v. Sharp, 93 N. J.