138 S.E.2d 573 (Ga. 1964), 22534, Evans v. Newton

Docket Nº:22534.
Citation:138 S.E.2d 573, 220 Ga. 280
Opinion Judge:ALMAND, Justice.
Party Name:E. S. EVANS et al. v. Charles E. NEWTON et al.
Attorney:The record does not support the contentions of the plaintiffs in error, and the judge could not properly have gone beyond the judgment rendered. The judgment is not shown to be erroneous for any of the reasons urged by counsel for the plaintiffs in error., The will of A. O. Bacon (which was proba...
Case Date:September 28, 1964
Court:Supreme Court of Georgia
 
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Page 573

138 S.E.2d 573 (Ga. 1964)

220 Ga. 280

E. S. EVANS et al.

v.

Charles E. NEWTON et al.

No. 22534.

Supreme Court of Georgia.

September 28, 1964

Casemaker Note: Portions of this opinion were specifically rejected by a later court in 221 Ga. 870.

Casemaker Note: Portions of this opinion were specifically rejected by a later court in 382US296

Casemaker Note: Portions of this opinion were specifically rejected by a later court in 86SC486

Casemaker Note: Portions of this opinion were specifically rejected by a later court See Casecheck

Casemaker Note: Portions of this opinion were specifically rejected by a higher court in 382 U.S. 296

Rehearing Denied Oct. 8, 1964.

Page 574

Syllabus by the Court

The record does not support the contentions of the plaintiffs in error, and the judge could not properly have gone beyond the judgment rendered. The judgment is not shown to be erroneous for any of the reasons urged by counsel for the plaintiffs in error.

The will of A. O. Bacon (which was probated in solemn form) in Item Nine gave in trust described property, to be known as 'Baconsfield,' to named trustees for the benefit of his wife and two named daughters for their joint use, benefit, and enjoyment during the term of their natural lives. It was provided that [220 Ga. 281] upon the death of the last survivor, the property, including all remainders and reversions, 'shall thereupon vest in and belong to the Mayor and Council of the City of Macon, and to their successors forever, in trust for the sole, perpetual and unending, use benefit and enjoyment of the white women, white girls, white boys and white children of the City of Macon to be by them forever used and enjoyed as a park and pleasure ground, subject to the restrictions, governmment, management, rules and control' ofa board of managers consisting of seven persons, not less than four to be white women and all seven to be white persons. In order to provide for the maintenance of the park, income from described real property and bonds as to be expended by the board of managers.

Charles E. Newton and others, as members of the Board of Managers of Baconsfied, brought an equitable petition against the City of Macon (in its capacity as trustee under Item Nine of the will of A. O. Bacon), and Guyton G. Abney and others, as successor trustees under the will holding assets for the benefit of certain residuary beneficiaries. It was alleged: The city as trustee holds the legal title to a tract of land in Macon, Bibb County, known as Baconsfield, under Item Nine of the will of A. O. Bacon. As directed in the will, the board through the years has confined the exclusive use of Baconsfield to those persons designated in the will. The city is now failing and refusing to enforce the provisions of the will with respect to the exclusive use of Baconsfield. Such conduct

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on the part of the city constitutes such a violation of trust as to require its removal as trustee. It was prayed that: the city be removed as a trustee under the will; the court enter a decree appointing one or more freeholders, residents of the city, to serve as trustee or trustees under the will; legal title to Baconsfield and any other assets held by the city as trustee be decreed to be in the trustee or trustees so appointed for the uses originally declared by the testator; and for further relief.

The City of Macon filed its answer asserting that it can not legally enforce racial segregation of the property known as Baconsfield, and therefore its unable to comply with the specific intention of the testator with regard to maintaining the property[220 Ga. 282] for the exclusive use, benefit, and enjoyment of the white women, white girls, white boys, and white children of the city. The city prayed that the court construe the will and enter a decree setting forth the duties and obligations of the city in the premises. The other defendant's admitted the allegations of the petition and prayed that the city be removed as a trustee. The petitioners thereafter filed a motion for summary judgment.

Revened E. S. Evans and others, alleging themselves to be Negro residents of the City of Macon, on behalf of themselves and other Negroes similarly situated, filed an intervenion in the cause and asserted: The restriction and limitation reserving the use and enjoyment of Baconsfield Park to 'white women, white girls, white boys and white children of the City of Macon,' is violative of the public policy of the United States of America and violative of the Constitution and laws of the State of Georgia. The court as an agency of the State of Georgia can not, consistently with the equal protection clause of the Fourteenth Amendment of the Constitution of the United States and the equivalent provision of the Constitution of the State of Georgia, enter an order appointing private citizens as trustees for the manifest purpose of operating, managing, and regulating public property (which passed to the City of Macon under a charitable trust created by will) in a racially discriminatory manner. Although the charitable devise at the time of its creation was capable of being executed in the exact manner provided by the will, by operation of law it is no longer capable of further execution in the exact manner provided for by the testator. The court should effectuate the general charitable purpose of the testator to establish and endow a public park by refusing to appoint private persons as trustees.

By amendment to the petition it was alleged: By the will of A. O. Bacon a trust was established for his heirs. The trust has been executed as to four of his seven heirs now living, A. O. B. Sparks, Willis B. Sparks, Jr., Virginia Lamar Sparks, and M. Garten Sparks. The interests of three remaining heirs, Louise Curry Williams, Shirley Curry Cheatham, and Manley Lamar Curry, are still held under an executed trust by four trustees holding under...

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