Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1873, § 2457, former Code 1882, § 2457, former Civil Code 1895, § 3325, former Civil Code 1910, § 3901, former Code 1933, § 113-807, and former O.C.G.A. § 53-2-94 are included in the annotations for this Code section.

Surrounding circumstances.

- The most important of those surrounding circumstances mentioned in the statute are the recipients of one's bounty, their relations to that one and associations with that one, one's uniform affection for them, or any interruption of the current of that affection. Olmstead v. Dunn, 72 Ga. 850 (1884) (decided under former Code 1882, § 2457).

General rule is that parol testimony is inadmissible to explain a will, except by proving the circumstances which surround the testator; the testator's relation to persons and things about the testator; and this may at all times be done. Billingslea v. Moore, 14 Ga. 370 (1853) (decided under former law).

Declarations of testator admissible on issue of undue influence.

- Declarations of a testator freely and voluntarily made prior to the execution of the testator's will manifesting a long-continued purpose to dispose of the testator's property in a particular manner would be admissible on the issue as to whether undue influences had been exercised or not. Clements v. Clements, 247 Ga. 787, 279 S.E.2d 698 (1981) (decided under former Code 1933, § 113-807).

Inconsistent statements by testator.

- Parol evidence is not admissible to show that a testator meant one thing when the testator said another. Hall v. Beecher, 225 Ga. 354, 168 S.E.2d 581 (1969) (decided under former Code 1933, § 113-807).

Parol evidence prohibited if language of will unambiguous.

- Parol testimony was not admissible to raise a latent ambiguity in a devise, and thus to defeat the legal effect of the plain, unambiguous terms used. Gillespie v. Schuman, 62 Ga. 252 (1879) (decided under former Code 1873, § 2457).

When the terms of a will are plain and unambiguous, parol testimony as to the sayings or statements of the testator that the testator intended to dispose of the testator's property in a certain way, and to certain persons, different from that expressed in the will, will be rejected. Hanvy v. Moore, 140 Ga. 691, 79 S.E. 772 (1913) (decided under former Civil Code 1910, § 3901).

While it is true that the cardinal rule for the construction of wills requires that the intention of the testator should be ascertained and enforced, and that in so doing parol evidence may be resorted to when the language of the will is doubtful or uncertain, there is no room for construction when the meaning of the words used in the will is so plain and obvious that it cannot be misunderstood and this is true although the words may express a meaning entirely at variance with the real intention of the testator. Hall v. Beecher, 225 Ga. 354, 168 S.E.2d 581 (1969) (decided under former Code 1933, § 113-807).

Oral testimony for purpose of inserting entirely new meaning.

- While courts are authorized to hear parol testimony of the circumstances relating to the testator at the time of the execution of the will, yet when the language of the will is unambiguous and the testator's intention is stated in unmistakable language, parol evidence is inadmissible for the purpose of showing a different intention. Hungerford v. Trust Co., 190 Ga. 387, 9 S.E.2d 630 (1940) (decided under former Code 1933, § 113-807).

If the terms of a will when legally construed are plain and unambiguous, parol evidence cannot be received for the purpose of showing an intention contrary to that which the language when properly construed necessitated, nor is parol evidence admissible to raise a latent ambiguity and then to explain the ambiguity, thus when no such ambiguity exists as a legal construction will not resolve, the construction is for the court, and not for the jury. Snellings v. Downer, 193 Ga. 340, 18 S.E.2d 531 (1942) (decided under former Code 1933, § 113-807); Hall v. Beecher, 225 Ga. 354, 168 S.E.2d 581 (1969);(decided under former Code 1933, § 113-807).

While parol evidence in some instances is authorized to explain an ambiguity in a will, oral testimony would be inadmissible for the purpose of inserting an entirely new clause in a will to dispose of an interest in property which the testator failed to devise. Lining v. Jackson, 203 Ga. 22, 45 S.E.2d 410 (1947) (decided under former Code 1933, § 113-807).

When the language of the will is unambiguous and the testator's intent is stated in clear and precise language, parol evidence is not admissible for the purpose of showing a different intent. Citizens & S. Nat'l Bank v. Kelly, 223 Ga. 294, 154 S.E.2d 584 (1967) (decided under former Code 1933, § 113-807).

When the terms of a will are plain and unambiguous, the terms must control, and parol evidence cannot be received to give the will a meaning different from that which is clearly and unequivocally expressed therein. Hall v. Beecher, 225 Ga. 354, 168 S.E.2d 581 (1969) (decided under former Code 1933, § 113-807).

Admissibility of parol evidence generally.

- If from the will the intention is manifest, there is neither a necessity for, nor a power to admit parol testimony. Ambiguity is the basis upon which it is admitted if at all; if there is no ambiguity, if the intention is manifest, the precedent condition of admissibility is wanting; and it is not an ambiguity which is undefined, a loose supposition that there may be doubt, a conjectural hypothesis of a variant intent. Leroy M. Wiley, Parish & Co. v. Smith, 3 Ga. 551 (1847), overruled on other grounds, Folsom v. First Nat'l Bank of Atlanta, 246 Ga. 320, 271 S.E.2d 461 (1980) (decided under former law).

If the intention cannot be clearly ascertained, by reason of any patent ambiguity as to the thing bequeathed, or the person who shall take, the court will hear evidence to explain such ambiguity as to the thing or person. Williams v. McIntyre, 8 Ga. 34 (1850) (decided under former law).

Parol evidence could not change, add to, or contradict a written will, but where there were ambiguities, whether latent or patent, the ambiguities could be explained by the parol evidence. Burge v. Hamilton, 72 Ga. 568 (1884) (decided under former Code 1882, § 2457) Doyal v. Smith, 28 Ga. 262 (1859) See also (decided under former law).

While parol evidence is admissible to raise a latent ambiguity in a description and then explain it, in every case the intention of the maker of the instrument must be gathered from the instrument itself, read in the light of the parol evidence. Of course it is not permissible to create a devise or bequest by parol; but the parol evidence must show what the testator's real intention was from the language used. Olive v. Henderson, 121 Ga. 836, 49 S.E. 743, 104 Am. St. R. 185 (1905) (decided under former Civil Code 1895, § 3325).

Distinction between latent and patent ambiguities.

- If a double meaning is apparent on the face of the instrument, then the ambiguity is a patent one. If the language is apparently not of double meaning, but is shown to be so only by the aid of collateral or extrinsic facts, the ambiguity is latent. Olive v. Henderson, 121 Ga. 836, 49 S.E. 743, 104 Am. St. R. 185 (1905) (decided under former Civil Code 1895, § 3325).

When the language of a will is doubtful or ambiguous, parol evidence is admissible for the purpose of assisting the court in ascertaining its meaning. In such a case parol evidence may be admitted for the purpose of showing and explaining a latent ambiguity in a will. But, when the terms of a will are plain and unambiguous, they cannot be varied or explained by parol evidence showing an intention on the part of the testator at variance with that expressed in the instrument. Citizens' & S. Nat'l Bank v. Clark, 172 Ga. 625, 158 S.E. 297 (1931) (decided under former Civil Code 1910, § 3901).

Parol evidence to establish identity.

- Writing purporting to convey land "to the heirs of" a named person, when that person is dead and the heirs are ascertainable, is not void upon the ground that "it does not show and does not describe the grantees"; for if there are persons ascertainable who are the heirs of the person named parol evidence would be admissible to establish their identity. Farrar Lumber Co. v. Brindle, 170 Ga. 37, 151 S.E. 923 (1930) (decided under former Civil Code 1910, § 3901).

Motive in making a bequest is a legitimate field for judicial inquiry only to the extent that motive may illuminate the vital question of intent, when, due to the uncertain and ambiguous language of the will, the testator's intent is doubtful. Hungerford v. Trust Co., 190 Ga. 387, 9 S.E.2d 630 (1940) (decided under former Code 1933, § 113-807).

Use of term "appropriate."

- Parol evidence was admissible to determine testator's intent as the term "appropriate" in the will provision restricting the attorney's choice of government agency, charity, or foundation to which the testator's real property would go was ambiguous. Board of Regents v. Bates, 262 Ga. 307, 418 S.E.2d 8 (1992) (decided under former O.C.G.A. § 53-2-94).

It is not competent to prove the contents of a will by parol evidence. Thomasson v. Driskell, 13 Ga. 253 (1853) (decided under former law).

Parol evidence admitted.

- Because the will contained a latent ambiguity as to which of two nephews was the intended beneficiary, evidence as to all the facts and circumstances respecting the decedent and the decedent's nephews, as well as parol evidence of the decedent's declarations, was admissible. Legare v. Legare, 268 Ga. 474, 490 S.E.2d 369 (1997) (decided under former O.C.G.A. § 53-2-94).

Charge on inadmissibility of parol evidence applies to will construction cases, not will validity cases. Clements v. Clements, 247 Ga. 787, 279 S.E.2d 698 (1981) (decided under former Code 1933, § 113-807).

Cited in Fraser v. Dillon, 78 Ga. 474, 3 S.E. 695 (1887); Morgan v. Huggins, 42 F. 869 (N.D. Ga. 1890); Georgia, C. & N. Ry. v. Archer, 87 Ga. 237, 13 S.E. 636 (1891); Lokey v. McMurrain, 154 Ga. 705, 115 S.E. 76 (1922); McMillan v. McCoy, 175 Ga. 699, 165 S.E. 604 (1932); Comer v. Citizens & S. Nat'l Bank, 182 Ga. 1, 185 S.E. 77 (1935); Murphy v. Johnston, 190 Ga. 23, 8 S.E.2d 23 (1940); Bratton v. Trust Co., 191 Ga. 49, 11 S.E.2d 204 (1940); Sproull v. Graves, 194 Ga. 66, 20 S.E.2d 613 (1942); MacGregor v. Roux, 198 Ga. 520, 32 S.E.2d 289 (1944); Hix v. Hix, 223 Ga. 50, 153 S.E.2d 440 (1967); Williams v. Whitehurst, 224 Ga. 246, 161 S.E.2d 507 (1968); Donehoo v. Donehoo, 229 Ga. 627, 193 S.E.2d 827 (1972); Scheridan v. Scheridan, 132 Ga. App. 210, 207 S.E.2d 691 (1974); McParland v. McParland, 233 Ga. 458, 211 S.E.2d 748 (1975); Cannon v. First Nat'l Bank, 237 Ga. 562, 229 S.E.2d 361 (1976); Grant v. Bell, 150 Ga. App. 141, 257 S.E.2d 12 (1979); DuBose v. Box, 246 Ga. 660, 273 S.E.2d 101 (1980); Chandler v. Chandler, 249 Ga. 575, 292 S.E.2d 685 (1982); Wright v. Trust Co. Bank, 260 Ga. 414, 396 S.E.2d 213 (1990).

Am. Jur. 2d.

- 80 Am. Jur. 2d, Wills, §§ 1114.

C.J.S.

- 95 C.J.S., Wills, § 599. 96 C.J.S., Wills, §§ 834, 892, 893.

ALR.

- Devise or bequest to beneficiary designated only as one who shall render specified service or occupy specified position or status, other than mere relationship, 38 A.L.R. 775.

Construction and effect of provisions of will regarding abatement of legacies or devises in event of insufficiency of assets to pay all in full, 101 A.L.R. 704.

Incorporation of extrinsic writings in will by reference, 144 A.L.R. 714; 173 A.L.R. 568.

Designation of legatee or devisee by abbreviation, 153 A.L.R. 486.

Effect of error in mentioning the number who are to take under a devise or legacy to persons described as a class, 173 A.L.R. 1012.

Term "next of kin" used in will, as referring to those who would take in cases of intestacy under distribution statutes, or to nearest blood relatives of designated person or persons, 32 A.L.R.2d 296.

Admissibility of subsequent declarations of settlor to aid interpretation of trust, 51 A.L.R.2d 820.

Person entitled to devise or bequest to "husband," "wife," or "widow,", 75 A.L.R.2d 1413.

Conclusiveness of testator's statement as to amount of debt or advancement to be charged against legacy or devise, 98 A.L.R.2d 273.

Admissibility of extrinsic evidence to clarify location of real property devised in a will, 16 A.L.R.3d 386.

Admissibility of extrinsic evidence to identify stocks, bonds, and other securities disposed of by will, 16 A.L.R.3d 432.

Admissibility of extrinsic evidence to determine whether fee or absolute interest, or only estate for life or years, was given, 21 A.L.R.3d 778.

Effect upon testamentary nature of document of expression therein of intention to make more formal will, further disposition of property, or the like, 46 A.L.R.3d 938.

Effect of gift to be disposed of "As Already Agreed" upon or the like, 85 A.L.R.3d 1181.