Ollie Mae Williams “Testatrix” died on August 28, 2001, leaving a properly executed will dated June 7, 1993 “Will”. In Item III 4 of the Will, Testatrix provided: “It is my desire and I hereby direct that a Trust Fund be established for the College or Technical School Educational Expenses to deserving persons with a preference in the fields of Agriculture or Homemaking not to exceed $25,000.00, preferably to relatives.” In Item III 5 of the Will, Testatrix provided: I hereby give, devise and bequeath the following amounts to the following private cemeteries: McGINNISS CEMETERY $25,000.00CHANDLER CEMETERY$25,000.00WILSON CEMETERY$20,000.00.Following Testatrix’s death, George Cronic, an attorney who drafted the will, was appointed as executor. Rather than set up a trust fund pursuant to Item III 4 of the Will, Cronic distributed $25,000 to the residuary legatees. With regard to Item III 5 of the Will, Cronic located R. L. Huff and Betty Huff, who had agreed to maintain Chandler Cemetery, and distributed $25,000 to them. Cronic was unable to locate any representatives of the remaining two private cemeteries. He treated the bequests to these cemeteries as lapsed gifts, and distributed the proceeds which would have otherwise gone to them to the residuary legatees. Subsequently, the Attorney General of Georgia brought suit against Cronic in superior court, contending that both Item III 4 and III 5 of the Will created charitable trusts and that Cronic breached his fiduciary duties by failing to fully fund them. The superior court agreed with the Attorney General’s claims, and, among other things, it ordered that the trusts be properly funded. In addition, it ruled that Cronic had to forfeit all of his executor’s fees. Cronic now contests these rulings, contending that the Attorney General lacked standing to challenge the disposition of property under Item III 5 and that the trial court erred by requiring him to forfeit any fees he had earned as executor. For the reasons set forth below, we affirm in part and reverse in part.
1. First, we must consider whether the Attorney general has standing in this case. Georgia law gives the Attorney General the power and standing to enforce charitable trusts. OCGA § 53-12-115 provides:In all cases in which the rights of beneficiaries under a charitable trust are involved, the Attorney General or the district attorney of the circuit in which the major portion of trust res lies shall represent the interests of the beneficiaries and the interests of this state as parens patriae in all legal matters pertaining to the administration and disposition of such trust.For standing to exist, therefore, a charitable trust must be in issue, not merely an outright gift, devise, or bequest.
