Estate of Henry A. Lassiter, deceased, Paula Ann Masters Lassiter, administrator, C.T.A. - Page 54

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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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Last modified: May 25, 2011