Clyde Allen died in February of 2003, and was survived by his wife, Bonnie Jean Allen Wife, and by his son from a former marriage, Jason Allen Son. The three shared a home owned by Mr. Allen but, after his death, both Wife and Son moved out. Mr. Allen’s will named Wife as executrix, and directed that she sell the property and divide the proceeds between herself and Son. The will further contained a “Special Request” which provided, in relevant part, that, until the house and property are sold, . . . the monthly payments and all taxes, are to be paid in two 2 equal shares by Wife and Son if Son still resides at the home at and after the time of my death. If Son does not reside at the home at or at any time after the time of my death then all monthly payments and taxes shall be paid by Wife. After Wife and Son vacated the premises, neither made the payments, and foreclosure proceedings were instituted. Wife then paid the arrearage, and she continued to make payments until the property was sold in April of 2004. Subsequent to the probate of the will, a dispute arose as to whether Son was obligated for one-half of the pre-sale payments made by Wife after he moved out of the residence. Pursuant to OCGA § 53-7-75, the probate court transferred the case to the superior court for a construction of the will. After conducting a hearing, the superior court concluded that Wife alone was responsible for the payments. She appeals from that order of the superior court.
Wife urges that the “Special Request” is of doubtful meaning and unenforceable as a limitation on a preceding devise of the property. However, it is clear from reading the will, as a whole, that the testator did not intend that title to the property itself pass to her and his Son. Compare Houston v. Coram , 215 Ga. 101, 103 2 109 SE2d 41 1959. Instead, he directed that the property be sold and the proceeds divided between them. The “Special Request” is in the nature of a charge on his bequest, requiring that Wife and Son, under certain conditions, make the mortgage and tax payments which became due prior to the sale and distribution of the proceeds. See Maynard v. Zellner , 151 Ga. 72, 79-80 2 105 SE 837 1921. ” ‘A charge is most often found in cases where the testator has given property to one person with the provision that he pay a certain sum to another person . . . .’ Cit.” Broach v. Hester , 217 Ga. 59, 61 121 SE2d 111 1961. Compare Cox v. Fowler , 279 Ga. 501 614 SE2d 59 2005 in terrorem clause.
