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procedures or requirements to be observed in the event of refusal
by the initial named trustee to accept the trust. In contrast,
Ga. Code Ann. section 53-12-6 (1997) mandates that “A trust shall
never fail for the want of a trustee.” Longstanding judicial
precedent then provides that the State courts are empowered to
appoint a trustee, see Prince v. Barrow, 48 S.E. 412, 418 (Ga.
1904), and Ga. Code Ann. section 53-12-170(c) (1997) permits the
courts to do so on the petition of an interested person. Since
the will here does not purport to restrict judicial authority,
and in fact seems to recognize that such exists with the
statement regarding “Any successor Executor or Trustee appointed
as herein provided, or appointed according to law”, we see no
reason to question the actions of the Probate Court in appointing
Mrs. Lassiter as trustee.
Second, because testator intent is referenced by both
parties in a variety of contexts, we mention its role in this
litigation. On one hand, it is axiomatic that construction of a
will is to be based on the intent of the testator as can be
ascertained therein. See Ga. Code Ann. sec. 53-2-91 (1997). It
is equally clear in the case at bar that Mr. Lassiter did not
contemplate the qualification of the Item V trust for a QTIP
election, since section 2056(b)(7), which created the election,
had not yet been enacted. On the other hand, however,
disclaimers, which by their very nature operate to modify a
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