Robbins v. Vanbrackle , 267 Ga. 871 ( 1997 )

Fletcher, Presiding Justice.

The named executor under the will of Mary M. Vanbrackle was unable to serve and the trial court construed the will as not naming a successor executor. The trial court appointed Vanbrackle’s son Alton Vanbrackle as administrator with will annexed and her daughter Joy Robbins appeals. Because Vanbrackle’s will did not appoint a successor executor in the event her named executor was incompetent, and because the trial court followed the correct statutory procedures in appointing Vanbrackle, we affirm.

Mary Vanbrackle executed her will in 1967 and named her mother as executor, with Robbins as executor “in the event that my mother should predecease me.” When Mary Vanbrackle died in 1995, her mother was still living but was incompetent.

OCGA § 53-2-91 requires a trial court to ascertain and give effect to the intention of a testator, but that “if a clause as it stands may have effect, it shall be so construed, however well satisfied the court may be of a different testamentary intention.” The language of Mary Vanbrackle’s will is unambiguous. The only contingency contemplated for the appointment of Robbins as executor is that Mary Vanbrackle’s mother predecease her. This contingency did not occur. Even though a court may be satisfied that the testator intended that Robbins be successor executor in the event her mother could not serve for any reason, the will did not so specify. Therefore, the trial court was not required to appoint Robbins as executor. The trial court correctly followed the procedure of OCGA §§ 53-6-29 and 53-6-24 in appointing her son as administrator with the will annexed when he was the choice of the majority of heirs under the will.

Judgment affirmed.

All the Justices concur, except Hunstein and Carley, JJ., who dissent.