Perkins v. Citizens & Southern Nat. Bank

• Decision Date: 15 March 1940
• Docket Number: 13077
• Citation: 8 S.E.2d 28,190 Ga. 29
• Court: Georgia Supreme Court
• Parties: PERKINS et al. v. CITIZENS & SOUTHERN NAT. BANK.

8 S.E.2d 28

190 Ga. 29

PERKINS et al. v. CITIZENS & SOUTHERN NAT. BANK.

13077

Supreme Court of Georgia

March 15, 1940

Rehearing Denied March 27, 1940.

Syllabus by the Court.

1. Where a gift to charity unconditionally vests for that purpose, either immediately or within the period permitted by the rule against perpetuities, it is not void as violating the rule.

(a) In such case, a direction by the donor for accumulation which merely postpones application to charity and is not a condition to vesting, is a provision relating only to management, and, whether valid or invalid within itself, will not destroy the gift.

(b) The law favors the vesting of estates, and in cases of doubt if it is reasonable to do so, will construe an instrument as creating a vested estate rather than a contingent one.

(c) Where an item of a will purports to make a devise of an equitable interest in praesenti, it is not qualified or overthrown by other provisions which do not clearly show an intention to impose a condition precedent to such vesting.

(d) Under the terms of the will presented for construction in this case, the fund devised to the trustee vested in charity upon the death of the testatrix, and the declared trust was not void as violating the rule against perpetuities.

2. The will provided that a fund devised for charity should be accumulated until it reached a stated amount, that the trustee should be 'the sole judge of the value of said corpus,' and that its decision should be final. Held, that the grant of such authority contemplated a reasonable judgment and did not render the trust void for uncertainty, as authorizing the trustee to postpone application to charity indefinitely.

3. The trust as declared in the will was not void for the following reasons, or any of them, as contended: (a) uncertainty as to classes of beneficiaries; (b) the purposes of the trust are not described with sufficient definiteness (c) in view of authority conferred upon the trustee, the fund may be applied to other than charitable purposes.

4. Under the rulings made above, the petition of heirs at law seeking a decree establishing an intestacy as to a residuary estate and directing its administration according to the laws of descent and distribution was subject to general demurrer as failing to state a cause of action. The court did not err in sustaining the demurrer and dismissing the petition.

A. Hollis Perkins and others, alleging themselves to be heirs at law and next of kin of Mrs. Mary Lee Perkins Price, deceased, filed their petition against the Citizens & Southern National Bank, as executor and trustee under the last will and testament of Mrs. Price, challenging certain items of her will, in which she sought to create a trust for the benefit of aged women and underprivileged children of Bibb County, and to provide the manner of its administration. They alleged various reasons why these items of the will should be held invalid, and prayed for a decree establishing an intestacy as to that portion of the estate which the testatrix thus attempted to devise in trust, and directing that the executor administer and distribute 'the said property' in accordance with the laws of descent and distribution. The petition, after several amendments, was dismissed on general demurrer, and the plaintiffs excepted. According to the petition, Mrs. Price, the testatrix, died on December 20, 1936, leaving a will in which the Citizens & Southern National Bank of Macon, Georgia, was named as executor. The will was duly probated in solemn form. The entire estate was valued by appraisers at $63,318.13. Item 1 provided for delivery of household goods, jewelry, and personal possessions in accordance with a letter which the testatrix stated she expected 'to leave with this instrument.' The plaintiffs alleged that no such letter was found, 'so that the articles named in item one became a part of the general estate of the testator.' Items 2 and 3 provided for specific legacies. The remainder of the estate amounted in value to $55,818.13. It is this residue which is the subject-matter of the present controversy, the portions of the will relating thereto being as follows: 'Item 4. I give, devise, and bequeath all the property of which I may die possessed, both real and personal and wheresoever situate, to the Citizens and Southern National Bank, a national bank association having an office and place of business in the City of Macon, County of Bibb, and State of Georgia, but in trust nevertheless upon the following trusts, uses, and purposes, that is to say:

'Item 5. I expressly direct said trustee to keep and maintain perpetually my family burial lot in Forsyth, Monroe County, Georgia, in good condition, including all monumental work on said lot directing said trustee to make such expenditures therefor as may be necessary, and to exercise care to keep said lot forever in good condition. I also direct said trustee to erect in my memory on said lot a monument in keeping with the other memorials on said lot, and with my circumstances and condition in life.

'Item 6. Said trustee is authorized and directed to collect, hold, and receive all the assets of my said estate, and to invest and reinvest the same in good income-producing securities and in accordance with the terms of this will,

'Item 7. Said trustee is expressly authorized to retain any or all of the investments which shall come to it as part of my estate, if in its discretion that is to the best interest of said estate, and is further expressly authorized to sell any or all of said securities in its discretion at public or private sale, with or without any order of court, and is further authorized to reinvest the proceeds from said sale or sales or any assets of my estate in whatever securities said trustee shall deem to the best interest of said estate, this authority extending to the purchase of or investment in first mortgages on improved real estate, stocks, bonds, debentures, or any other securities which the trustee shall deem safe and to the best interest of said estate.

'Item 8. Said trustee during the continuance of this trust is further authorized in its discretion to sell, trade, or otherwise dispose of any or all assets of my said estate, at public or private sale, with or without any order of court, as to it may seem to the best interest of said estate, and to invest and reinvest the proceeds in its discretion in whatever securities said trustee shall deem to the best interest of said estate, this authority extending to the purchase of or investment in first mortgages on improved real estate, stocks, bonds, debentures, or any other securities which the trustee shall deem safe and to the best interest of said estate. Said trustee is given full discretion as to investments to be made by it for said estate, and shall only be liable for gross negligence in the making of such investments.

'Item 9. From the income of said estate said trustee shall pay all taxes due by the said estate and all expenses of administering the same; and after all taxes and expenses have been paid, said trustee shall add the net income from said estate to the corpus thereof for the purpose of building up the amount of said corpus for the purposes and in the manner hereinafter set out.

'Item 10. During the existence of this trust said trustee shall annually file with the ordinary of Bibb County a return showing the assets of said estate and the income and disbursements during the previous year, and no other or further return shall be required of said trustee.

'Item 11. Said trust is established by me for the purpose of creating the Perkins-Ponder Foundation in memory of my beloved father and mother, Alexander Lee Perkins and Mary Jane Ponder, and in perpetual memory of them. I am creating this foundation partly from funds which came to me as the estate of my dear sister, Josephine L. Perkins, and in the creation of said foundation for the purposes for which it is created I am acting in the earnest belief that my action is in entire accord with her own thoughts and wishes. It is my sincere hope that, through the conscientious efforts of the trustee herein named and with the co-operation and assistance of the board herein later constituted, said trust and said foundation will be so administered as to do the greatest possible amount of good for the beneficiaries thereunder with the amount available from said estate.

'12. Said trustee shall continue to add the net income from my estate to the principal until the net cash value of the corpus of said estate shall be equal to the sum of $100,000. The trustee shall be the sole judge as to the value of said corpus, and the decision of said trustee in this respect shall be final.

'13. When the net cash value of the corpus of my said estate in the hands of said trustee shall amount to the sum of $100,000, then I name, constitute, and appoint an advisory board for the purpose of expending the portion of the net income from said estate which shall hereinafter be made available to said advisory board under the terms of this will.

'Item 14. Said advisory board shall consist of one representative of the Citizens and Southern National Bank, the then mayor or other executive head of the city government, and a third member to be selected by the first two named members. Said third member shall be a resident of Bibb County, Georgia, and serve for the remainder of his life or until his resignation or removal from the county. In the event that the first two named members can not agree upon a third, then the then judge of Bibb superior court is authorized and empowered to name the third member of said advisory board. So long as E. C Scott, Esq., shall live and be connected with said...