Todd B. D. Frary

Legal Research and Writing II

Dana Norman – Spring 2009

CITATION OF CASE

Chattowah Open Land Trust, Inc. v. Jones, 281 Ga. 97, 636 S.E.2d. 523 (2006).

PARTIES

Chattowah Open Land Trust, Inc. is the appellant; Jones and other parties are the

appellees.

OBJECTIVES OF PARTIES

The Chattowah Open Land Trust, Inc. seeks to receive the property devised in the

Will of Judith Felton outright and without any encumbrances. They object to receiving

an executor’s deed as it would deprive them of the property in the form of fee simple

absolute, allowing them to sell the land but retain a conservation easement. The appellant

seeks to receive the land outright and free of encumbrances.

The appellees argue that the Will of Judith Felton established a charitable trust,

responsible for ownership of the land. The exectuor’s deed, as offered to Chattowah,

would have fulfilled the requirements of Felton’s Will, however Chattowah rejected this

offer as they wished to receive the land outright and free of all encumbrances. Since the

appellees and the appellant could not reach an agreement the appellees petitioned the

Cobb County Probate Court to name a successor trustee for the charitable trust.

THEORIES OF THE LITIGATION

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This is a civil case. The cause of action is declaratory relief regarding the devise

of land in the Will of Judith Felton, late of Cobb County, Georgia. At issue is whether

Item V of the will creates an unequivocal trust for the conservation of land.

HISTORY OF THE LITIGATION

On February 25, 2005, the co-executors filed a Petition for Direction and

Construction of the Will, asking the Cobb County Probate Court to determine whether the

will created a charitable trust or provided for an outright devise of the property subject to

a condition subservient.

On April 27, 2005, the Cobb County District Attorney, 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.

A hearing was set for June 21, 2005, but prior to the hearing Chattowah requested

and received two separate extensions of time. Despite the extensions, Chattowah failed

to answer either petition fired its attorney the day before the hearing. At the hearing

Chattowah’s attorney presented the probate court with a handwritten note requesting a

postponement. The court indicated it was not inclined to postpone the hearing unless all

parties agreed. No such agreement was reached and the hearing continued. Based on the

will’s express language of devise and intent, the probate court ruled the Decedent had

unambiguously created a charitable trust of her property and rejected Chattowah’s

contention that an outright devise of the property subject to a condition subsequent had

been made.

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The probate court entered a final order on the matter on June 28, 2005, naming

the Board of Commissioners of Cobb County as the successor trustee of the charitable

trust.

FACTS

Judith Felton, the decedent, died testate on November 27, 2003. Item V (a) of her

will 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 (hereinafter referred to as 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.

The co-executors (and appellees), tendered an executor’s deed to Chattowah.

This executor’s deed exactly tracked the language of Item V of the will deeding the

property to Chattowah. Chattowah refused this deed, arguing that it was entitled to

receive the property outright and that the conservation conditions would cloud the

property’s title, preventing 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.

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On February 25, 2005, the co-executors filed a Petition for Direction and

Construction of the Will, asking the Cobb County Probate Court to determine whether the

will created a charitable trust or provided for an outright devise of the property subject to

a condition subservient. On April 27, 2005, the Cobb County District Attorney, 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.

A hearing was set for June 21, 2005, but prior to the hearing Chattowah requested

and received two separate extensions of time. Despite the extensions, Chattowah failed

to answer either petition and the day before the hearing, Chattowah fired its attorney. On

the day of the hearing Chattowah’s attorney presented the probate court with a

handwritten note requesting a postponement of the hearing. At the hearing Chattowah’s

executive director asked to address the probate court, but the court rejected her request as

she was not an attorney licensed to practice in Georgia. The court further indicated it had

already granted extensions of time to Chattowah and was not inclined to postpone the

hearing unless all parties agreed. No such agreement was reached and the hearing

continued.

Based on the will’s express language of devise and intent, the probate court ruled

the Decedent had unambiguously created a charitable trust of her property and rejected

Chattowah’s contention that an outright devise of the property subject to a condition

subsequent had been made. Because no ambiguities were found in the will, no parol

evidence was considered. The probate court determined that Chattowah had renounced

its position as trustee by rejecting the executor’s deed, refusing the existence of any kind

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of trust, and claiming an outright interest in the property. The probate court entered a

final order on the matter on June 28, 2005, naming the Board of commissioners of Cobb

County as the successor trustee of the charitable trust.

ISSUES

Chattowah contends the probate court’s ruling erred on the following issues:

1. By denying its former counsel’s request for a continuance pursuant to

O.C.G.A. § 9-10-155.

Chattowah dismissed their counsel prior to the time of the hearing and it is

unclear whether Chattowah still needed or required a continuance or not. The

lack of standing by counsel was clearly an issue as to the granting or denial of

continuance by the probate court and the court was correct in refusing a request

for a continuance if that attorney was no longer the attorney of record for

Chattowah. The court gave the opportunity for a continuance if all parties agreed,

but they did not, therefore no continuance was given.

2. That the probate court erred by holding that Decedent’s will unambiguously

created a charitable trust rather than an outright devise subject to a condition

subsequent.

The Decedent’s Will could be viewed as being ambiguous about

specifically creating a charitable trust responsible for maintenance and

preservation of the property in the manner in which the Will proscribed. The

Decedent’s will is similarly ambiguous about deeding the land outright to

Chattowah, and instead appears to offer a conservation easement to the

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organization as per the phrase “exclusively for conservation purposes.” In

situations where a Will is inartfully articulated or unclear then it is up to the

probate court to determine the intent.

Chattowah has indicated no desire to retain the property in perpetuity as a

trustee, and instead asserts it should be entitled to sell the property to other parties

while retaining only a conservation easement. As a consequence Chattowah

appears to want to have it both ways: it wants to receive the land and be able to do

with it as it pleases without the restraints and confines of a trust, yet it wants to

prevent a successor trustee from being named.

3. That the probate court erred by preventing it from presenting parol evidence

regarding Decedent’s intentions underlying Item V of the will.

Because the probate court determined no ambiguities existed in the Will,

no parol evidence was considered. As a result the probate court determined

Chattowah renounced its position as trustee by rejecting the executor’s deed,

refusing the existence of any kind of trust, and claiming an outright interest in the

property. The defense cannot have it both ways: they can either accept the

probate court’s ruling that the Will unambiguously created a charitable trust or

can accept the executor’s deed, not both. Clearly Chattowah does not have the

power to act as a trustee in Georgia, which likely is why it is pursuing receiving

the property as a outright gift from the estate.

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4. That the probate court erroneously held that it rejected Chattowah’s position

as trustee, arguing that there was never a proper tender of an executor’s deed

and that it was never asked to be a trustee.

Chattowah clearly received the offer of an executor’s deed from the co-

executors and they rejected the offer. The contention by Chattowah is that it was

never asked to be the trustee by the co-executors; something they could not do

because Chattowah was not qualified to serve as a trustee. Based on the wording

of the Item V of the Decedent’s Will as interpreted by the Probate Court, the Will

unambiguously created a trust to maintain the land in perpetuity. Again,

Chattowah is trying to have it both ways.

5. That the probate court erred by appointing the Cobb County Board of

Commissioners to act as successor trustee.

The Decedent’s will did not name a successor trustee in the event that

Chattowah declined to accept the devise. With Chattowah unwilling to accept the

terms of the will as interpreted by the probate court, the court had no choice to but

to name a successor trustee. The power to do so is clearly vested with the probate

court. Chattowah certainly has the right to appeal the ruling of the probate court

if it is displeased with the ruling.

6. That the probate court erred by failing to grant a jury trial, contending that a

jury was needed to determine a number of factual issues, including Decedent’s

intent.

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At no point did Chattowah request a jury hearing instead of having the hearing

held before the judge. Chattowah could easily have requested a jury hearing and

appealing based on their failure to do so is akin to changing the rules once a game

is already in progress or completed. There is no indication the judge would be

less knowledgeable on substantive matters of law than a jury of laymen would be,

and indeed the opposite would appear to be the case. More than likely Chattowah

would prefer a jury hearing as the believe jurors would be more sympathetic to

their cause as opposed to the objectivity of the probate court judge.

HOLDINGS

Regarding Issue 1, the court was proper in denying a continuance. On Issue 2, the

probate court had the power to determine Decedent’s intent and provides solid reasoning

as to the creation of a trust by the Decedent’s Will. The probate court is correct in its

holding on this issue as well. On Issue 3, the probate court was correct in its assessment

that Chattowah was not a proper trustee for this purpose and that since there was no

ambiguity in the will there was no reason to consider parol evidence. On Issue 4,

Chattowah clearly received the offer of the executor’s deed but rejected it as it wanted to

serve as trustee and take full possession of the property; something it was not authorized

to do. Again, the probate court made the correct ruling. On Issue 5, since Chattowah

does not have the authority to serve as trustee a successor trustee had to be named since

the Will failed to name a successor trustee. This is fully within the authority of the

probate court and the ruling was correct. Lastly, on Issue 6, at no point did Chattowah

make a request for a jury trial, which was there prerogative to do. The probate court

judge held that the Will was unambiguous in it’s creation of a trust and since unequivocal

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evidence was provided that Chattowah was not authorized to serve as a corporate trustee

there were no matters of fact to be determined that would require a jury. Therefore the

probate court was correct in this ruling as well.

REASONING

The key issues in this case are whether or not the Decedent’s Will created a trust

or not, and whether Chattowah was legally authorized to serve as that trustee. The other

issues largely revolve around these two central issues. The probate court held that the

Decedent’s Will indeed did create an express trust, specifically its holding that specific

items necessary for the maintenance and upkeep of the property be included, along with

language in the Will to the effect of the property being maintained in perpetuity. With

that issue addressed the probate court moved to the second issue, which was whether or

not Chattowah was legally authorized to serve as trustee for the property. The answer to

this was that while Chattowah was a corporation, under O.C.G.A. § 53-12-24 (a) it did

not have the legal capacity to serve as trustee, therefore the probate court had a legal

obligation to name a successor trustee.

In the other six issues specific to this case the reasoning for each issue is

addressed under the section on HOLDINGS.

DISPOSITION

Judgment affirmed. All the Justices concur.