dissent">Carley, Justice,

dissenting.

According to the majority, “[i]n most cases, distributions in kind from different classes of property that result in equal beneficiaries receiving equal value would not show a violation of the executor’s duty. But under the peculiar facts of this case, such does.” Majority opinion, p. 479. I submit that there is nothing “peculiar” about this case and the probate court correctly found that the distribution proposed by the executor did not violate the terms of the testatrix’s will.

The executor “ ‘has the sacred duty of standing in the place of the deceased and administering [her] estate as directed.’ [Cit.]” Ringer v. Lockhart, 240 Ga. 82, 84 (239 SE2d 349) (1977). Had the testatrix intended that the stock which she owned at her death be divided equally, she could have provided for such an equal distribution by means of a specific bequest of her shares. Instead, the stock is simply a part of her residual estate which she directed be distributed to her beneficiaries “in equal shares.” Her will also authorizes the executor to “make distributions either in cash or in kind” and provides that “[d]istributions in kind may be made at the discretion of my personal representative.” As the majority concedes, the distribution proposed by the executor results in each beneficiary receiving an equal share of the residual estate. Thus, the probate court’s order authorizing that distribution should be affirmed.

*480Decided March 24, 2003Reconsideration denied April 11, 2003.Hughes & Kaplan, Robert E. Hughes, Jr., for appellant.John C. Tyler, for appellee.

The majority concludes that the executor is elevating his own interests over that of Harp, in violation of the duty imposed by OCGA § 53-7-1 (a). Majority opinion, p. 479. However, the executor has the fiduciary duty to administer the estate in accordance with the deceased’s directive, and she gave him the discretion to dispose of her residual estate by making distributions in cash or in kind. He does not abuse that discretion by complying with the terms of the will he is charged with administering. The effect of today’s opinion is to rewrite the will so as to make the testatrix’s shares of stock the subject of a specific bequest and to divest the executor of the discretion which she invested in him. In so holding, the majority violates the well-recognized principle that “courts are without authority to rewrite by construction an unambiguous will since the court can not substitute its will for that of the testator, whether wise or unwise. [Cits.]” Bedgood v. Thomas, 220 Ga. 262 (138 SE2d 313) (1964).

I am authorized to state that Presiding Justice Sears and Justice Hunstein join in this opinion.

Citation profile

Relationships

How this case has been treated — in progress