England v. Pate , 260 Ga. 481 ( 1990 )

Bell, Justice.

This case involves the construction of a will. The appellee, Láveme Pate, filed a complaint for a declaratory judgment to construe the will of Thomas Scott Lavendar. Pate contends that language in the fifth paragraph of the will operates to leave her all property that Lavendar owned individually or owned jointly with her. The appellants, Lavendar’s three children (one of them both individually and as executrix), contend the language in question should be construed as leaving Pate only the property she jointly owned with Lavendar. The result of the construction appellants urge would be that they would take Lavendar’s individually-owned property pursuant to the rest of the will.

The trial court entered a judgment in favor of Pate. The court first ruled that the disputed fifth-paragraph language was not clear, and then found that Lavendar intended for Pate to take all property he owned individually or owned jointly with Pate. The court also denied a counterclaim by the executrix for marshalling and preserving the estate’s assets. Lavendar’s children appealed to this Court.

1. We conclude the trial court was correct in determining that the language in dispute was ambiguous on the question of what property Lavendar intended to leave to Pate. However, we further conclude that Lavendar intended to leave only jointly-owned property to Pate, and that the trial court erred in concluding otherwise. We therefore reverse the court’s ruling that the will gave Pate Lavendar’s individually-owned property.

2. The trial court’s denial of the counterclaim is reversed and remanded for reconsideration in light of this opinion.

Judgment reversed with direction.

All the Justices concur.