Instead of making specific bequests of specific property to specific beneficiaries, testators often simply distribute their personal property “per stirpes” to a group of beneficiaries, such as their children or nephews and nieces.  In these circumstances, the executor is typically given discretion in how the property is divided so long as it is divided equally.  This distribution scheme is begging for a fight between siblings on who gets dad’s gun with the executor stuck in the middle.  Of course, conflict increases tenfold when the executor is one of the legatees who might receive the property.

In Stewart v. Ray, the Georgia Supreme Court had occasion to interpret language in a will that set up one of these distribution schemes and confirmed how we were all probably interpreting them anyway.Item III of Willie Ray, Sr.’s will provided:

A. All of my household furniture, furnishings, paintings, objects of art, books, pictures, silverware, jewelry, clothing and other such personal effects, I give, devise and bequeath to my eight (8) children, per stirpes, to be distributed among my children as and in the manner my Executor, in his or her sole discretion, determines to be fair and reasonable . . . In the event that any person to whom a particular item of personal property is to be left should predecease me, or does not desire to receive such item, such item shall either become a part of my residuary estate or shall be distributed as my Executrix determines, using her best judgment, which shall be binding on all of my heirs and beneficiaries.

Item IV of Ray Sr.’s will further provided:

All the rest, residue and remainder of my property, I give, devise and bequeath to my eight (8) children, per stirpes, at the discretion of my Executor, to be divided among them as and in the manner in which my Executor in his or her sole discretion determines to be fair and reasonable. If any of my children do not survive me, his or her share of my property shall pass to his or her lineal descendants, if any, per stirpes. If a child predeceases me without leaving lineal descendants, his or her share shall pass to my surviving children.

The executor argued that, as executor, she had sole discretion to distribute Ray Sr.’s estate.  She interpreted this to mean she could distribute it unequally if she chose, and the “per stirpes” terms only meant that if she determined that one of Ray Sr.’s children should receive part of the estate and that child was deceased, the property would pass to that deceased child’s heirs.

One of Ray Sr.’s children urged an interpretation that the “per stirpes” language required equal distribution among the eight siblings, with the discretionary language in the will granting the executor discretion in the manner of distribution.  Thus, the executor could decide who, exactly, got what so long as the overall shares were equal.  This was the correct interpretation of the per stirpes language in the will.

The Georgia Supreme Court held that Ray Sr. identified his children as the primary legatees by using the language “to my eight (8) children, per stirpes.”  Thus, by using this language, Ray Sr. intended to leave equal shares to each of his eight children with descendants of a deceased child taking that child’s representative per capita share.