199 S.E.2d 194 (Ga. 1973)
Miss Clem Boyd executed her will on March 10, 1962.1 She died on April 6, 1962.2 The executor of her estate brought an action in the Superior Court of DeKalb County seeking construction of her will and direction from the court.3
Angie Boyd Hansen executed a conditional renunciation of her interest under the will on January 22, 1963.4 This document conditioned her renunciation on her not having a lingering illness after all her funds had been exhausted.5 It further required that she not have an accident or illness or inability to care for herself which would send her to a hospital or nursing home. In that event her own cash would be exhausted and she would be rendered dependent on others.6 In October 1964, Angie Boyd Hansen executed a purported will containing a further renouncement.7 That instrument was later declared void by reason of lack of mental capacity on her part at the time it was executed.8 On June 28, 1965, Angie Boyd Hansen executed an unconditional renouncement in writing in the presence of three witnesses and a notary public.9
The will authorized the executors to sell at private sale the real property located at the corner of Mt. Perrian Road and Tour-Lane Highway to Marietta from Atlanta, N. W.10 Such sale was to be made after the property is zoned for business and at such time a fair price can be obtained.11 In Item X of the will, the testatrix directed that all funds remaining after the prior bequests are made or set aside be made into an Endowment or Scholarship Fund in memory of her parents, the late William and Frances McCord Boyd, of Newton County, Georgia.12 The fund was to be known as the Boyd-McCord Memorial Scholarship and placed with the Trustees of the Georgia Institute of Technology, Emory University, and Agnes Scott College, in equal proportions.13
The appellant is the executor of the estate of Angie Boyd Hansen.14 The trial court entered an order on motion for summary judgment that denied the appellant's motion but granted summary judgment favorable to the appellees as to several issues in the case.15 The appeal is taken from that order to the Supreme Court of Georgia.16
Whether the order appealed from is subject to dismissal?17
Yes. The trial court entered an order on motion for summary judgment that denied the appellant's motion but granted summary judgment favorable to the appellees as to several issues in the case. The appeal is taken from that order to the Supreme Court of Georgia. The facts establish that the order went further than merely denying the appellant's motion for summary judgment.20 The Supreme Court of Georgia therefore had jurisdiction to review the rulings.21
The order appealed from is subject to direct appeal.22
Whether there is a genuine issue of fact as to whether Angie Boyd Hansen renounced her interest under the will of Clem Boyd?23
Yes. Angie Boyd Hansen executed a conditional renunciation on January 22, 1963, that depended on whether her funds subsequently became exhausted and whether she became dependent on others.26 The only contention of appellant with respect to this purported renunciation is that it is too conditional to constitute a valid and binding renunciation.27 No authority is cited by appellant for this position and we are not aware of any rule of law or of any public policy which would forbid the enforcement of such attempted renouncement.28
The issue as to this attempted renouncement is simply whether in fact Mrs. Hansen's funds subsequently became exhausted and whether she thereby became dependent on others by reason thereof.29 This factual issue was properly left by the court for decision by a jury.30 On June 28, 1965, Angie Boyd Hansen unconditionally and in the presence of three witnesses and a notary public again executed in writing a renouncement.31 The legal effect of this instrument may depend on her mental capacity at the time or upon other issues of fact.32
There is a genuine issue of fact as to whether Angie Boyd Hansen renounced her interest under the will of Clem Boyd.33
Whether the executor may sell at private sale the real property referred to in Item XI of the will if he determines a private sale will be more advantageous to the estate?34
The executor is authorized to sell the real property at private sale without order of court and without advertisement if he in his discretion determines a private sale will be more advantageous to the estate.35
Yes. By Item XI of her will, the testatrix authorized her executors to sell at private sale the real property located at corner of Mt. Perrian Road and Tour-Lane Highway to Marietta from Atlanta, N. W., such sale to be made after said property is zoned for business and at such time a fair price can be obtained therefor.36 The petitioner alleged in Count 3 of the complaint that the property referred to in this item is substantially surrounded by single family residences.37 It also alleged that the possibility that it can be zoned for business is very slight.38 Under the conditions prevailing the sale of the property at private sale can bring the best price.39
In ruling on the executor's plea for direction with respect to this item, the trial court did not err in holding that the executor could sell the property therein referred to at private sale if he in his discretion determines a private sale will be more advantageous to the estate.40
The executor may sell at private sale the real property referred to in Item XI of the will if he determines a private sale will be more advantageous to the estate.41
Whether the word 'funds' in the residuary clause of Item X of the will was used in the generic sense?42
Yes. The testatrix devised in the residuary clause, Item X of her will, all funds remaining after the prior bequests are made or set aside to be applied to the scholarship fund purposes described in the residuary clause.45 The use by her of the word funds was properly held to have been in the generic sense, for otherwise, as to some of the remaining assets, an intestacy would have resulted had any narrower construction been given that term.46 Under the facts of this case, the construction of this item of the will was for the court and not for a jury.47
The word 'funds' in the residuary clause of Item X of the will was used in the generic sense.48
Whether the doctrine of cy pres may be applied to exclude the racial classification from the charitable scholarship fund established in Item X of the will?49
When a valid charitable bequest is incapable of execution in the exact manner provided by the testator, donor, or founder, a court of equity will carry it into effect in such a way as will as nearly as possible effectuate his intention.50 A devise or bequest to a charitable use will be sustained and carried out in this State under the doctrine of cy pres when there is a general charitable intent.51
Yes. In Item X of the will of Clem Boyd, there is recorded the desire that an educational scholarship fund be established in memory of the deceased's parents.52 The trusts established in Item X conformed in subject matter to those legitimate subjects of charity as found in Code § 108-203, being for the poor and for educational purposes.53 The purpose was one which offered a benefit to the general community, thereby qualifying as a public trust even though a preference is given to the relatives of the testator.54
We infer from this that the testatrix possessed the requisite charitable intent as would authorize the use of cy pres to remove the discriminatory classification of the beneficiaries.55 The will in the present case did not contain language by which the testatrix intended that the charitable trusts be administered exclusively in the manner prescribed.56 Other evidence supportive of the establishment of a specific and exclusive intention was also absent from the will, for there was no provision in the devise, for example, for a reverter clause or an alternative gift over in the event of a failure of the grant.57 We conclude from the foregoing that the evidence on summary judgment was conclusive of the trial court's finding of a general charitable intent on the part of the testatrix.58 The doctrine of cy pres was correctly applied in excluding the illegal racial classification from the charitable grant.59
The doctrine of cy pres may be applied to exclude the racial classification from the charitable scholarship fund established in Item X of the will.60