Simmons v. England , 323 Ga. App. 251 ( 2013 )

MCFADDEN, Judge.

This action was brought against the executrix of a will by two named beneficiaries. Those beneficiaries, who were the testator’s employees, now appeal from the superior court’s determination that, since the testator’s business was a sole proprietorship at the time of his death, there was no “business property” to be distributed to them pursuant to the will.

The appeal was initially filed in our Supreme Court. That court determined that the question on appeal is whether the estate contains “business property,” not the validity or meaning of the will. So it transferred the case to us.¹

Plainly there is such property. And as to that property, the intention of the testator should prevail. We therefore reverse the trial court’s ruling that all of the testator’s property was personal property to which the appellants were not entitled.

The two beneficiaries are James Simmons and Elery Stinson, former employees of Robert Carl Haege. They filed this declaratory judgment action seeking a declaration that, under Article V of Haege’s will, they were entitled to certain property Haege had used in his business. Haege signed the will on September 8, 2006, and he died on December 5 of the same year. He was unmarried and had no children and named his sister as his executrix. Article V of the will, the provision upon which Simmons and Stinson rely, provides:

I give, bequeath and devise all of my personal assets, both real and personal, to James E. Haege, my brother and Sharon Haege England, my sister, per capita. I give, bequeath and devise all of my business interests, both, tangible and intangible, real or personal, connected to the business known as Traditional Fine Art, Ltd. to James S. Simmons, Ele.ry Stinson, James E. Haege and Sharon Haege England, per stirpes. It is specifically the intent of this provision that Steve [sic] S. Simmons enjoy, after this bequest, thirty four (34%) percent of the outstanding member certificates, that Elery Stinson enjoy seventeen (17%) percent of the outstanding member certificates, that James E. Haege and Sharon Haege England each enjoy twenty four and one half (24.5%) percent of the outstanding member certificates.

The superior court ruled that because Haege was a sole proprietor, upon his death, all of the property used in his business was personal property, and Simmons and Stinson were thus not entitled to any. Simmons and Stinson appealed to the Supreme Court of Georgia, which transferred the appeal here.

The will means what it says, and every sentence must be given effect. It is undisputed that at the time of the testator’s death his contemplated limited partnership had not been formed, so there were no member certificates. Therefore the sentence in Article V devising member certificates is without effect. OCGA § 53-4-66 (“[A] specific testamentary gift is adeemed or destroyed, wholly or in part, when the testator for any reason does not own the subject of such gift at death.”).

But the preceding sentence in Article V, which devises “all of [Haege’s] business interests, both tangible and intangible, real or personal, connected to the business known as Traditional Fine Art, Ltd.,” is not limited to member certificates. To hold otherwise would render meaningless a sentence of the will. And it is well settled that the “intention of the testator must prevail” and that “the whole will is to be taken together, and operation is to be given every part of it, if this can be done without violating its terms or the intention of the testator.” Jordan v. Middleton, 220 Ga. 903, 906 (1) (142 SE2d 806) (1965) (citations omitted). See also Scheridan v. Scheridan, 132 Ga. App. 210 (207 SE2d 691) (1974) (after transfer from Supreme Court, Court of Appeals reversed judgment in will dispute, ruling that parol evidence must be considered to resolve latent ambiguity in will and to effectuate testator’s meaning).

The question, then, is whether there were any business interests to be devised. Without citing any authority, the appellees argue and the trial court found that the bequest fails, because Haege operated his business as a sole proprietorship and all of a sole proprietor’s business assets are his personal assets. But wills routinely distinguish among a testator’s personal assets. Testators are free to make whatever specific bequests they wish. We need not, and therefore must not, render the explicit bequest of business interests a nullity.

It is true that the bequest of “all of [Haege’s] business interests, both tangible and intangible, real or personal, connected to the business known as Traditional Fine Art, Ltd.” is not specific and that distribution of those assets among the named beneficiaries will be problematic, particularly as Haege used one bank account and his personal credit cards to pay both his business and personal bills and obligations, took title to the commercial property in his own name, and took out personal loans against it. But those are simply issues for the factfinder, which must identify the business interests. See Delbello v. Bilyeu, 274 Ga. 776, 777 (1) (560 SE2d 3) (2002) (trial court as factfinder determined what testator intended to include in his bequest of “personal property’).

Accordingly, the judgment of the superior court is reversed and the case is remanded for the factfinder to determine which assets exist to fill the bequest of business interests.

Judgment reversed.

Phipps, C. J., Barnes, P. J., and Ellington, P. J., concur. Doyle, P. J., concurs in judgment only. Boggs and Branch, JJ., dissent.

1 In answering that question we are, of course, deciding the meaning of the will. It is entirely proper that we do so, notwithstanding that “all oases involving wills” fall within our Supreme Court’s general appellate jurisdiction, Ga. Const. 1983, Art. VI, Sec. VI, Par. Ill (3); see also In re Estate of Lott, 251 Ga. 461 (306 SE2d 920) (1983) (construing that clause to encompass “those cases in which the will’s validity or meaning is in question”).

Our Supreme Court has determined that, where an issue within the general appellate jurisdiction conferred on it by Ga. Const. 1983, Art. VI, Sec. VI, Par. Ill is “merely ancillary’ to issues within the appellate jurisdiction of this court, the case should be decided in this court. Saxton v. Coastal Dialysis and Medical Clinic, 267 Ga. 177, 179 (476 SE2d 587) (1996) (addressing equity jurisdiction).

Once our Supreme Court has determined that an issue within its general appellate jurisdiction is merely ancillary, it is not our role to challenge that determination. Troutman v. Troutman, 297 Ga. App. 62, n. 1 (676 SE2d 787) (2009). We must abide by the decisions of our Supreme Court.

Abiding by our Supreme Court’s decision to transfer a case entails deciding the issues it has found to he ancillary. A different rule may obtain as to issues within the Supreme Court’s exclusive appellate jurisdiction, which are arguably outside our institutional competence. See Ga. Const. 1983, Art. VI, Sec. VI, Par. II (assigning the Supreme Court “exclusive appellate jurisdiction” over “(1) [a]ll cases involving the construction of a treaty or of the Constitution of the State of Georgia or of the United States and all cases in which the constitutionality of a law, ordinance, or constitutional provision has been drawn in question; and (2) [a]ll cases of election contest”). But as to issues within the Supreme Court’s general appellate jurisdiction, any effort on our part to decide a case that has been transferred without deciding issues that the Supreme Court has found to be ancillary would subvert the Supreme Court’s decision to transfer and would deprive the parties of their right to have the case decided correctly under the controlling law to the best of our ability and understanding.

See also Neal v. State, 290 Ga. 563, 572 (722 SE2d 765) (2012) (Supreme Court has jurisdiction over “all murder cases, whether the death penalty or life imprisonment was imposed”) (Hunstein, C. J., joined by all the Justices, concurring).