(Code 1981, §53-4-70, enacted by Ga. L. 1996, p. 504, § 10.)
Cross references.- Equitable principles governing elections between benefits, § 23-1-24.
Applicability of section to deeds, § 44-5-37.
COMMENTThis section carries over former OCGA Sec. 53-2-112.
JUDICIAL DECISIONS
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 4610, and former Code 1933, § 37-502, are included in the annotations for this Code section.
Statute does not apply to residuary legatees as such. McGinnis v. McGinnis, 1 Ga. 496 (1846) (decided under former law).
Meaning and intent.
- Meaning and intent of this statute is that it is designed for the purpose of making sure that a legatee shall not be permitted to hold onto a legatee's own legacy under a will and at the same time deprive another legatee of property given the legatee under the will. Holliday v. Pope, 205 Ga. 301, 53 S.E.2d 350 (1949) (decided under former Code 1933, § 37-502).
Statute is not intended and should not be construed to mean that a legatee must speculate by electing to take what the legatee believes to be a good claim to property, and at that period of pure chance relinquish the legatee's unquestioned title to the property under the will. On the other hand, the intent of this statute is to prevent such legatee from taking both the property going to the legatee under the will and property which the legatee claims. Holliday v. Pope, 205 Ga. 301, 53 S.E.2d 350 (1949) (decided under former Code 1933, § 37-502).
Election defined.
- An "election" in equity is a choice which a person is compelled to make between the acceptance of a benefit under an instrument and the retention of one's own property which is attempted to be disposed of by that instrument. Rieves v. Smith, 184 Ga. 657, 192 S.E. 372 (1937) (decided under former Code 1933, § 37-502).
Election requires prior adjudication of ownership of devised property.
- Plaintiff would not be compelled to elect between a legacy and a "mere claim" to property until after there has been an adjudication of the question whether or not plaintiff is in fact the owner of an interest in the property disposed of by the will, and then only in the event this issue is determined in plaintiff's favor; since, if plaintiff were first compelled to elect, and plaintiff should for any reason fail in the trial to establish plaintiff's claim, there would be no defeated or disappointed legatees to compensate, but, on the contrary, the other legatees would get the very property plaintiff claimed. Rieves v. Smith, 184 Ga. 657, 192 S.E. 372 (1937) (decided under former Code 1933, § 37-502).
A case of election only arises when a person is entitled to one of two benefits to each of which plaintiff has the legal title, and an election can exist only when there is a choice between two or more inconsistent remedies actually existing at the time of election. Rieves v. Smith, 184 Ga. 657, 192 S.E. 372 (1937) (decided under former Code 1933, § 37-502).
To raise a case of election a person must be entitled to one of two benefits, to each of which one has legal title, but to enforce both would be unconscientious and inequitable to others having claims upon the same property or fund. One must have legal title to both benefits, and have right to enforce either at one's election. Holliday v. Pope, 205 Ga. 301, 53 S.E.2d 350 (1949) (decided under former Code 1933, § 37-502).
Choice of beneficiary.
- When a testator, after devising property owned by the testator to one beneficiary, assumes to devise to another property belonging to the first devisee, the devisee of the property owned by the testator, if one accepts the devise with knowledge of the facts, is precluded from asserting a claim to one's own property devised to the other beneficiary. The beneficiary must elect between keeping one's own and taking what is given by the will. Rieves v. Smith, 184 Ga. 657, 192 S.E. 372 (1937) (decided under former Code 1933, § 37-502).
Choice is compulsory between two inconsistent rights or claims when there is a clear intention of the testator that the beneficiary shall not enjoy both. Rieves v. Smith, 184 Ga. 657, 192 S.E. 372 (1937) (decided under former Code 1933, § 37-502).
Requirement that will describe specific property.
- Doctrine of election as applied to wills, against one claiming inconsistent benefits, arises when the testator "has attempted to give property not his own, and has given a benefit to a person to whom that property belongs," in which case "the devisee or legatee shall elect either to take under or against the will." It is applicable when the instrument confers upon one a benefit while attempting to dispose of one's own property, in which event such person must elect whether to accept the benefit under the instrument or retain one's property. However, this doctrine does not apply when testamentary disposition describes no specific property so as to identify the property with that of the claimant, but describes the property only generally, as "all my real and personal property and all property of every kind and character owned by me at my death," since the testator would be presumed to have intended to bequeath only what the testator actually owned and could lawfully dispose of. First Nat'l Bank & Trust Co. v. Roberts, 187 Ga. 472, 1 S.E.2d 12 (1939) (decided under former Code 1933, § 37-502).
Doctrine of election may prohibit specific performance of contract.
- Specific performance of an alleged contract to will certain property in return for services rendered testator would not be decreed if to do so would allow the petitioner to acquire both that property and the property already given to one under the will. Holliday v. Pope, 205 Ga. 301, 53 S.E.2d 350 (1949) (decided under former Code 1933, § 37-502).
Condition contemplated by statute, when an election is mandatory, will exist in a suit for specific performance of a contract to will certain property to petitioner who was given other less desirable property in the will, only when by a judgment of the court the petitioner acquires legal title to the property which one seeks; and by the very act of praying for and obtaining such a decree of title the petitioner will have thereby made an election to renounce the petitioner's legacy under the will, and the requirements of statute will thus be satisfied. Holliday v. Pope, 205 Ga. 301, 53 S.E.2d 350 (1949) (decided under former Code 1933, § 37-502).
Cited in Lamar v. McLaren, 107 Ga. 591, 34 S.E. 116 (1899); Caraker v. Brown, 152 Ga. 677, 111 S.E. 51 (1922); McFadden v. Dale, 155 Ga. 256, 116 S.E. 596 (1923); State Banking Co. v. Hinton, 178 Ga. 68, 172 S.E. 42 (1933).
RESEARCH REFERENCES
ALR.
- Revocation of election to take under or contrary to will, 81 A.L.R. 740; 71 A.L.R.2d 942.
Right to accept one devise or bequest under will and renounce another, 91 A.L.R. 607.
When one to whom policy of insurance on life of testator is payable is put to his election as between his right under the policy and his right to take under provision for his benefit in will, 110 A.L.R. 1317.
Doctrine of election or estoppel as applicable as against beneficiary of will where provision for other beneficiary is invalid, not for reasons personal to former, but because of statute or public policy, 112 A.L.R. 377.
Validity of election to take under or against will as affected by the fact that it was filed before probate of will or grant of letters, 120 A.L.R. 1270.
Doctrine of election as applicable where testator after the execution of the will transferred to one beneficiary the subject of a specific devise or bequest to another, 147 A.L.R. 735.
Necessity of election between will and contract by testator to leave property at death, 152 A.L.R. 898.
Does surviving spouse who elects against will take by way of distributive share or by way of inheritance from deceased spouse, 160 A.L.R. 429.
Election to take against will as extinguishing power of appointment, 38 A.L.R.2d 977.
Election by spouse to take under or against will as exercisable by agent or personal representative, 83 A.L.R.2d 1077.
Factors considered in making election for incompetent to take under or against will, 3 A.L.R.3d 6.
Time within which election must be made for incompetent to take under or against will, 3 A.L.R.3d 119.