Judith Felton “Decedent” died testate on November 27, 2003. In Item V a of her will, she devised her personal residence and surrounding property “to the Chattowah Open Land Trust, Inc., for qualified conservation purposes, as described in Section 170 h of the Internal Revenue Code of 1986 the “Code”, and the Treasury Regulations thereunder, or subsequent law of similar import.” Felton further provided that it was her intent “to bequeath her homeplace and the surrounding acreage to an organization which will maintain the property in perpetuity exclusively for conservation purposes within the meaning of Section 170 h of the Code.” In addition, in Item V b of the will, she bequeathed gardening equipment to Chattowah so that it could appropriately maintain the property. J. Donald Jones and SunTrust Bank, the co-executors and appellees herein, tendered an executor’s deed to Chattowah. This executor’s deed exactly tracked the language of Item V of the will, and it deeded the property to Chattowah as trustee of a charitable trust established for conservation purposes. Chattowah refused this deed,1 arguing that it was entitled to receive the property outright and that the conservation conditions would cloud the property’s title and prevent Chattowah from receiving the full benefit of the devise. Chattowah maintained that it was not required to hold the property in perpetuity as a trustee, but was instead entitled to sell the property to other parties while retaining only a conservation easement.
Due to this controversy, on February 25, 2005, the co-executors filed a Petition for Direction and Construction of the Will, asking the probate court to determine whether the will created a charitable trust or provided for an outright devise of the property subject to a condition subsequent. On April 27, 2005, the Cobb County District Attorney, acting on behalf of the public pursuant to OCGA § 53-2-115, filed a petition to name a successor trustee to carry out the charitable purposes of the will because Chattowah was attempting to defeat the charitable trust by demanding an outright devise.2
