This appeal is from the superior court’s grant of summary judgment in a case regarding the construction of the will of Tommie Elmo.1 Finding no error, we affirm. Tommie Elmo “Tommie” was the wife of Joseph Elmo “Joseph”; she had children from a previous marriage, including Susan Bandy. Using funds provided by Joseph, the couple purchased an 18.9 acre tract of land that had previously been in Tommie’s family; each held an undivided one-half interest. Tommie died in 1994. A provision of her will stated: If my husband, JOSEPH ELMO, survives me by as much as thirty 30 days I hereby give, devise, and bequeath all of my property, both real and personal, wherever located, to him. However, he shall not sell or encumber any real estate I hereby give him without the written approval of the Executor of my estate.2Bandy was named executrix of Tommie’s estate, and Joseph demanded a deed to the realty from Bandy; she refused; Joseph sought her removal as executrix; and the probate court transferred the issue of the construction of the above language to the superior court. Joseph filed a petition for a declaratory judgment in the transferred case, and Bandy filed a counterclaim. In an order entered June 29, 2005, the superior court ruled that the language: “However, he shall not sell or encumber any real estate I hereby give him without the written approval of the Executor of my estate,” was a restraint on the alienation of a fee simple estate, and therefore void. See Statham v. Kelly , 276 Ga. 877 584 SE2d 246 2003; Imerys Marble Co. v. J.M. Huber Corp. , 276 Ga. 401 577 SE2d 555 2003; Chandler v. Chandler , 249 Ga. 575 292 SE2d 685 1982. In the same order, the superior court also ordered the case returned to the probate court. Bandy filed a direct appeal in this Court, which was dismissed as the case was not final below. Bandy v. Elmo , 280 Ga. 221 626 SE2d 505 2006.
Upon return of the case to the probate court, Bandy was removed as executrix of the estate, and James Henderson was named as successor executor. Joseph moved for summary judgment on the declaratory judgment petition in the superior court, which was granted in an order filed July 26, 2007, and Bandy appeals.
