2020 Georgia Code
Title 53 - Wills, Trusts, and Administration of Estates
Chapter 4 - Wills
Article 6 - Construction of Will; Testamentary Gifts
§ 53-4-64. Death of Beneficiary Before Will Executed or Before Death of Testator

1. If a beneficiary is dead when the will is executed or otherwise dies before the testator, but has any descendants living at the death of the testator, the testamentary gift, if absolute and without remainder or limitation, shall not lapse but shall vest in the descendants of the beneficiary in the same proportions as if inherited directly from the deceased beneficiary under the intestacy laws of this state.
2. The provisions of subsection (a) of this Code section shall also apply to a testamentary gift to a class unless there appears a clear intent to the contrary.
3. If a beneficiary is treated as having predeceased the testator due to a divorce or annulment, as provided in Code Section 53-4-49, or due to the beneficiary being responsible for the death of the testator, as provided in Code Section 53-1-5, the provisions of subsection (a) of this Code section shall apply only to vest the testamentary gift in descendants of the beneficiary who are also descendants of the testator.

(Code 1981, §53-4-64, enacted by Ga. L. 1996, p. 504, § 10.)

- For article, "The Time Gap in Wills: Problems Under Georgia's Lapse Statutes," see 6 Ga. L. Rev. 268 (1972). For article, "The Time Gap in Wills: Shifting Assets and Shrinking Estates - Obsolescence and Testamentary Planning in Georgia," see 6 Ga. L. Rev. 649 (1972). For article, "Descendible Future Interests in Georgia: The Effect of the Preference for Early Vesting," see 7 Ga. L. Rev. 443 (1973). For article surveying developments in Georgia wills, trusts, and administration of estates law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 307 (1981). For article, "Lapse Statutes: Recurring Construction Problems," see 37 Emory L.J. 323 (1988). For survey article on wills, trusts, guardianships, and fiduciary administration for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 459 (2003). For note, "Vesting Title in a Murderer: Where is the Equity in the Georgia Supreme Court's Interpretation of the Slayer Statute in Levenson?," see 45 Ga. L. Rev. 877 (2011).

Paragraph (a) of this section carries over former OCGA Sec. 53-2-103, the Georgia anti-lapse statute, with slight modifications in the language. Paragraph (b) provides that, absent a clear intent to the contrary, the anti-lapse statute overrides the class gift rule so that the descendants of a predeceased class member may take that class member's share, pursuant to the provisions of this statute. Paragraph (c) provides that the descendants of a beneficiary who is treated as having predeceased the testator due to the statutes relating to divorce (Code Sec. 53-4-49) or to the killing of the testator by the beneficiary (OCGA Sec. 53-1-5) may not take that beneficiary's share under this statute unless they are also descendants of the testator. For example, if a testator's will leaves a testamentary gift to the testator's spouse but the testator and spouse are then divorced, Code Sec. 53-4-49 provides that the testator's spouse will be treated as having predeceased the testator. The children of the testator's spouse may take in place of this "predeceased" beneficiary but, pursuant to subsection (c) of this section, only if they are also children of the testator.

ANALYSIS

• General Consideration
• Application of Section

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1863, § 2430, former Code 1882, § 2462, former Civil Code 1895, § 1330, former Civil Code 1910, § 3906, former Code 1933, § 113-812, and former O.C.G.A. § 53-2-103 are included in the annotations for this Code section.

- Former Civil Code 1910, §§ 3906 and 3907, dealing with lapsed legacies and the results of lapses, apply in cases involving an absolute legacy, without more, and a lapse; but the statutes in no way restrict the power of a testator to provide what shall become of the testator's estate in case of the death of a legatee named in it. Foster v. Hardee, 135 Ga. 591, 69 S.E. 1110 (1911) (decided under former Civil Code 1910, § 3906).

It is familiar law that a legacy lapses by the death of the legatee or devisee in the life time of the testator, unless there be words of substitution or other provisions in the will, or by statute against a lapse. Collier v. Citizens & S. Nat'l Bank, 206 Ga. 857, 59 S.E.2d 385 (1950) (decided under former Code 1933, § 113-812).

At common law and under the law of this state before the Act of 1836 (former Code 1933, § 113-812), if the legatee died before the death of the testator the legacy lapsed, whether the legatee left issue or not. Now, if there be issue, the issue takes as substituting legatee. Sanders v. First Nat'l Bank, 189 Ga. 450, 6 S.E.2d 294 (1939) (decided under former Code 1933, § 113-812).

- Testator's designation of beneficiaries by name generally indicates the testator intended the beneficiaries to take as individuals, but other language in the will may show a controlling intention that the individuals take as a class. Whitlock v. Lawson, 260 Ga. 520, 397 S.E.2d 433 (1990) (decided under former O.C.G.A. § 53-2-103).

- Normally when a sole legatee under a will predeceases the testator and leaves no lineal descendants, a lapse of the legacy occurs, and the testator's estate passes to his or her heirs at law. However, a testator may prevent such a lapse by providing for the disposition of his or her estate in the event of the death of the legatee. Fiumefreddo v. Scudder, 252 Ga. 279, 313 S.E.2d 683 (1984) (decided under former O.C.G.A. § 53-2-103).

- Statute provides what shall be done when a legatee who has already been determined predeceases the testator, and is intended to prevent the lapse of legacies. Johns v. Citizens & S. Nat'l Bank, 206 Ga. 313, 57 S.E.2d 182 (1950) (decided under former Code 1933, § 113-812).

Ultimate effect of the statute is that the devise vests in the issue in the same proportions as if inherited directly from their deceased ancestor. Seymour v. Presley, 239 Ga. 572, 238 S.E.2d 347 (1977) (decided under former Code 1933, § 113-812).

Those who are entitled to the devise will take as substituted beneficiaries, and not as heirs of the deceased legatee. Seymour v. Presley, 239 Ga. 572, 238 S.E.2d 347 (1977) (decided under former Code 1933, § 113-812).

Cited in Pace v. Klink, 51 Ga. 220 (1874); Cheney v. Selman, 71 Ga. 384 (1883); Pearson v. Cochran, 152 Ga. 276, 109 S.E. 498 (1921); Mills v. Tyus, 195 Ga. 119, 23 S.E.2d 259 (1942); Saliba v. Saliba, 202 Ga. 791, 44 S.E.2d 744 (1947); McGhee v. Banks, 115 Ga. App. 155, 154 S.E.2d 37 (1967); Brown v. Newkirk, 239 Ga. 579, 238 S.E.2d 352 (1977); Honeycutt v. Honeycutt, 284 Ga. 42, 663 S.E.2d 232 (2008).

Application of Section

When the legacies and devices are not absolute and are limited.

- When the legatee dies before a contingent legacy is vested, there is nothing to transmit to the heirs. Allen v. Whitaker, 34 Ga. 6 (1864) (decided under former Code 1863, § 2430).

Testator devised to J. $2,500.00, "provided he is in my employment at the time of my death." J. voluntarily severed business relations with the testator, and died before the death of the testator. In a suit by the testator's wife and children to recover the legacy, it was held that the legacy lapsed, and the plaintiffs are not entitled to recover. Johnson v. Folsom, 145 Ga. 479, 89 S.E. 521 (1916) (decided under former Civil Code 1910, § 3906).

Statute does not apply when the legacy is made expressly contingent on the legatee surviving the testator and then the legatee predeceases the testator. Powell v. Watkins, 221 Ga. 851, 148 S.E.2d 303 (1966) (decided under former Code 1933, § 113-812).

If they had been absolute and not limited, lapse would have been prevented by this statute, even though the beneficiaries are a class, where all the class predeceased the testator, as contrasted with the situation where one of a class survives, preventing lapse and the intervention of this statute; when one of a class survives, the rule of survivorship is applicable. Graham v. Patton, 231 Ga. 391, 202 S.E.2d 58 (1973) (decided under former Code 1933, § 113-812).

- Statute does not require that the issue of a deceased legatee or devisee also be a descendant of the testator before a legacy or devise will vest under the statute. Robinson v. Ray, 254 Ga. 237, 327 S.E.2d 721 (1985) (decided under former O.C.G.A. § 53-2-103).

Statute does not apply to class gifts. Johnson v. Wishard, 227 Ga. 355, 180 S.E.2d 738 (1971) (decided under former Code 1933, § 113-812).

- When there is a devise to a class, those dying in the lifetime of the testator do not take, and there being no question of lapsed legacy, the statute is inapplicable. Davie v. Wynn, 80 Ga. 673, 6 S.E. 183 (1888) (decided under former Code 1882, § 2462); Tolbert v. Burns, 82 Ga. 213, 8 S.E. 79 (1888);(decided under former Code 1882, § 2462).

Statute has no application to the case where the legacy is to a class, and one or more of the class is in esse at the testator's death. It is only when all the members of the class predecease the testator that a lapse will be prevented. Davis v. Sanders, 123 Ga. 177, 51 S.E. 298 (1905) (decided under former Civil Code 1895, § 3330).

A bequest to B and B's children is a bequest to a class. The class consists of B and such of B's children as survive the testator. B had a child who died before the testator, leaving issue, such issue would not share with B in the legacy under the law. Davis v. Sanders, 123 Ga. 177, 51 S.E. 298 (1905) (decided under former Civil Code 1895, § 3330).

Devise by a mother to her children, share and share alike, including her son, is a devise to a class, and the whole property thereunder goes to those members of the class only who survive the testator. Hurst v. McKissack, 209 Ga. 440, 73 S.E.2d 91 (1952) (decided under former Code 1933, § 113-812).

- When a testator named a testator's daughter and granddaughter in the testator's will, and stated the testator's intention to reward them individually for services they had rendered to the testator, the probate court erred by ruling that the testator intended a class, rather than individual, gift. Whitlock v. Lawson, 260 Ga. 520, 397 S.E.2d 433 (1990) (decided under former O.C.G.A. § 53-2-103).

Statute cannot be applied when an unfulfilled condition attached to vesting. Graham v. Patton, 231 Ga. 391, 202 S.E.2d 58 (1973) (decided under former Code 1933, § 113-812).

- When a testator by the testator's will gave to one of the testator's daughters one-fourth of the testator's estate, and the daughter died before the death of the testator, leaving two children who survived her and the testator, the interest in the estate of the testator so given to this daughter, the same being absolute and without remainder or limitation, vested in such issue of the daughter as if inherited directly from their deceased grandfather. When a daughter of such deceased daughter of the testator died intestate, leaving no spouse or issue, but leaving her father and a sister as her sole heirs at law, such father and sister become entitled to any estate to which the deceased daughter was entitled either in right of her mother under the will of her grandfather or in her own right. Terry v. Chandler, 172 Ga. 715, 158 S.E. 572 (1931) (decided under former Civil Code 1910, § 3906).

When the grantee in the deed was also appointed by will, but died before the will became effective, leaving a child as the sole heir at law, who was in life at the death of the testator, the child was substituted as appointee by operation of law, and took the property in remainder, to the exclusion of the person to whom the named appointee had attempted to convey the property. Newton v. Bullard, 181 Ga. 448, 182 S.E. 614 (1935) (decided under former Code 1933, § 113-812).

Unless there be something to indicate a contrary intent on the part of the testator, a devise or bequest to a named person, followed by a provision that if the person shall die childless the property shall pass to some other person, conveys to the person a fee, subject to be divested upon the person dying childless, or, as it is sometimes called, a base or qualified fee. Scranton-Lackawanna Trust Co. v. Bruen, 206 Ga. 872, 59 S.E.2d 397 (1950) (decided under former Code 1933, § 113-812).

Devise of the residue of testator's estate to one person, and if the testator should die without children to another, conveys to the first devisee an estate in fee defeasible on the testator dying childless, and when, as here, the second devisee survived the testator, but predeceased the first devisee, upon the death of the first without child or children, the property passed to the heirs of the second devisee. Scranton-Lackawanna Trust Co. v. Bruen, 206 Ga. 872, 59 S.E.2d 397 (1950) (decided under former Code 1933, § 113-812).

- When the original will did not contain a residuary clause, and two daughters had died a short time prior to the execution of the codicil which provided that property given to one deceased daughter would descend to testator's other heirs, it was the manifest intention of the testator to, in effect, supply a residuary clause to the will. Davant v. Shaw, 206 Ga. 843, 59 S.E.2d 500 (1950) (decided under former Code 1933, § 113-812).

Legacy to a testator's daughter having lapsed by her death before the death of the testator, the interest in the estate given to this daughter, the same being absolute and without remainder or limitation, and this daughter having left issue living at the death of the testator, vested in such issue as if inherited directly from the deceased grandfather. Powell v. Watkins, 221 Ga. 851, 148 S.E.2d 303 (1966) (decided under former Code 1933, § 113-812).

- Anti lapse statute under O.C.G.A. § 53-4-64(a) did not apply when the intent of the testator in drafting the will with regards to the testator's residual estate clearly expressed the intent that the bequests were contingent upon the beneficiaries surviving the testator; the bequests were conditional and lapsed when the unfulfilled condition attached to vesting. Bridges v. Taylor, 276 Ga. 530, 579 S.E.2d 740 (2003).

Motion for summary judgment of the testator's grandchildren in an action against their three uncles alleging that the grandchildren had an interest in the property that comprised the testator's estate was properly denied because the plain language of the will indicated that the testator did not intend that the bequests follow the law of intestacy, and the presumption in favor of a per stirpes distribution in the anti-lapse statute was overcome; the use of the phrase "per capita" in the will imposed a requirement that the individuals named, the testator's children, take the bequests in the children's own stead, and that the children had to survive the testator; and the grandchildren's mother, the testator's daughter, did not survive the testator. Piccione v. Arp, 302 Ga. 270, 806 S.E.2d 589 (2017).

RESEARCH REFERENCES

Am. Jur. 2d.

- 80 Am. Jur. 2d, Wills, § 1424.

- 97 C.J.S., Wills, § 1803.

- Applicability of statute to prevent lapses, in case of person dead at time will was made, 3 A.L.R. 1682.

Effect of restrictive words or reference to specific property in residuary clause to limit scope of clause as regards lapsed or ineffectual legacies and devises, 10 A.L.R. 1522.

Decree directing distribution of estate to person who is dead, 25 A.L.R. 1563.

Rule that devise over in case of first taker's death refers to death in testator's lifetime as affected by fact that the first devisee was unborn when will was made, 26 A.L.R. 609.

Devise or bequest to one "or his heirs" or to one "and his heirs" as affected by death of person named before death of testator, 78 A.L.R. 992; 128 A.L.R. 94.

Lapse of legacy charged on devise on death of beneficiary before time fixed for payment, 82 A.L.R. 680.

Intention of testator as defeating operation of statute to prevent lapses, 92 A.L.R. 846; 63 A.L.R.2d 1172.

Provision of will that children, etc., of remainderman who dies before expiration of precedent estate or time fixed for distribution to remaindermen, shall take the share to which he would have been entitled, as affecting character of remainder as vested or contingent, 109 A.L.R. 5; 47 A.L.R.2d 900.

Who are within descriptive terms "relation," "descendant," "child," "brother," "sister," etc., describing the legatee or devisee, in statute providing against lapse upon death of legatee or devisee before testator, 115 A.L.R. 444; 63 A.L.R.2d 1195.

Statute to prevent lapse in event of death of devisee or legatee before testator as applicable to interest of beneficiary under trust who dies before testator, 118 A.L.R. 559.

Death of life tenant before death of testator as causing lapse or "acceleration" of remainder, 133 A.L.R. 1367.

Devolution of lapsed portion of residuary clause, 139 A.L.R. 868; 36 A.L.R.2d 1117.

Time as of which "heirs" or "next of kin" descriptive of beneficiaries of a devise or bequest are to be determined where ancestor predeceases the testator, 162 A.L.R. 716.

Postponement of time of closing a class to which a future interest is given, as implying survivorship, 166 A.L.R. 823.

Gift over to surviving members of a group of share of deceased member as creating absolute interest in last survivor, 166 A.L.R. 1277.

Classification for purposes of inheritance or succession or estate tax of one who takes by virtue of lapsed legacy statute, 168 A.L.R. 271.

Benefit of direction in deed or will for payments by grantee or devisee to third person as surviving latter's death, and passing as part of his estate, 6 A.L.R.2d 363.

Devise or bequest to designated individual "or his estate," "or his children," "or his representative," or the like (other than "or his heirs"), as subject to lapse in event of individual's death before that of testator, 11 A.L.R.2d 1387.

Who is "child," "issue," "descendant," "relation," "heir," etc., within antilapse statute describing the person taking through or from the legatee or devisee, 19 A.L.R.2d 1159.

Right or option given by will to purchase estate property as personal, or as surviving optionee's death and exercisable by his successors in interest, 28 A.L.R.2d 1167.

Construction and effect of proviso of will that "in case of the death" of a devisee or legatee, or "if he die" (or equivalent expression), the property shall go to another, 51 A.L.R.2d 205.

Applicability of antilapse statutes to class gifts, 56 A.L.R.2d 948.

Antilapse statute as applicable to interest of beneficiary under inter vivos trust who predeceases life-tenant settlor, 47 A.L.R.3d 358.

Wills: gift over to "survivors" of class or group of designated beneficiaries as restricted to surviving members of class or group, or as passing to heirs or representatives of deceased beneficiary, 54 A.L.R.3d 280.

Validity, construction, and application of statutory requirement that will beneficiary survive testator for specified time, 88 A.L.R.3d 1339.

Testamentary option to purchase estate property as surviving optionee's death, 18 A.L.R.4th 578.