Bienvenu v. First Nat. Bank of Atlanta

• Court: Georgia Supreme Court
• Writing for the Court: GRICE, Justice.
• Citation: Bienvenu v. First Nat. Bank of Atlanta, 193 Ga. 101, 17 S.E.2d 257 (Ga. 1941)
• Decision Date: 16 October 1941
• Docket Number: 13863.
• Parties: BIENVENU v. FIRST NAT. BANK OF ATLANTA.

17 S.E.2d 257

193 Ga. 101

BIENVENU v. FIRST NAT. BANK OF ATLANTA.

No. 13863.

Supreme Court of Georgia

October 16, 1941

Rehearing Denied Nov. 13, 1941.

Syllabus by the Court.

1. An estate which by the terms of the instrument creating it is limited to a life estate is not enlarged into a fee by reason of the fact that in the same instrument the holder of the life estate is given the power merely to sell or encumber and to convey by her deed alone, the entire fee-simple title.

2. Where by deed of conveyance a life estate is granted to one and a remainder estate to another, and contains also a power conferred on the life tenant to sell the fee, and in pursuance of such power a sale is made and the purchase money received therefrom is retained by the life tenant until her death, her personal representative as such is liable to account to the remainderman for the purchase money which came into her hands as the result of such sale.

3. The life tenant dying on December 29, 1940, a portion of the purchase money arising from the sale having been received during the month of October, 1923, and the balance on April 30, 1925, the instant suit, filed March 19, 1941, is not barred by any four-year statute of limitations, no cause of action arising until there was a conversion, and there could be no conversion so long as the life tenant lived.

4. The right of action was not in the grantor in the deed, but in the remainderman, since the former by her deed had parted with all interest in the property, and it was the remainderman who was entitled to the proceeds upon the death of the life tenant.

Mrs Jean Bienvenu brought her action in Fulton superior court against the First National Bank of Atlanta, as executor of the estate of Mrs. Julia C. Cohen, to recover $15,000, with interest, by reason of the following facts alleged: In the year 1905, Mrs. Mary H. Clarke executed a conveyance of real estate in Atlanta, Fulton County, the essential portions of which conveyance are here quoted or set forth in substance, as follows: The indenture was between Mrs. Mary H. Clarke and Mrs. Cohen 'and her children now in life or hereafter to be born.' The consideration was love and affection, Mrs. Cohen being the daughter of Mrs. Clarke; and the conveyance was 'to Mrs. Julia C. Cohen a life-estate, and to such children of the said Mrs. Cohen as she may leave surviving her the fee-simple interest in remainder after the termination of the life-estate,' of certain described realty fronting on Peachtree Street and running through to Juniper Street. Immediately following the description of the property is the following language in the instrument: 'The power to sell or encumber that part of the above-described property which fronts on the west side of Juniper Street and extends back westwardly to a depth of 210 feet, more or less, is hereby given to and vested in the said Julia C. Cohen, and in the exercise of said power the said Julia C. Cohen is hereby authorized and empowered to convey the entire fee-simple title thereto by her deed alone, either in the matter of a sale or otherwise.' Then follow the habendum clause and a warranty of title.

The petition alleges, that Mrs. Cohen died leaving petitioner her sole surviving child, and that upon her mother's death petitioner, as remainderman, became entitled to all of said property under the terms of said deed; that in the year 1923 Mrs. Cohen executed a security deed to that part of the property described in the deed from Mrs. Clarke which fronts on the west side of Juniper Street, extending back westward to a depth of some 200 feet, to secure a loan to her of $5,000, which has never been paid; that in 1925 Mrs. Cohen sold this portion of the property for $10,000, 'which sum came into the possession of Mrs. Cohen and was retained by her until the time of her death;' that upon the death of Mrs. Cohen the defendant bank, as her executor, took over the entire estate, including all the funds and moneys aforesaid, and by reason of the foregoing facts the estate is now impressed with a trust in the amount of $15,000 in favor of plaintiff, the $15,000 received by Mrs. Cohen standing in the place of the property under the terms of the deed from Mrs. Clarke. Defendant has refused to deliver the same to petitioner, who prays that defendant account to her for the proceeds of the land and all the profits and issues thereof; or, in the alternative, that judgment be rendered against defendant as executor of the estate of Mrs. Cohen, for $15,000, with interest; and for such other and further relief as to the court may seem meet and proper.

To this petition the defendant demurred on the following grounds: (1) That no cause of action was set forth. (2) That the facts alleged are not sufficient to show a trust, and that there was no obligation on the part of Mrs. Cohen to hold in trust the money so received, and no right on the part of the plaintiff to receive said money on the death of Mrs. Cohen. (3) That Mrs. Cohen had a right to sell or mortgage the property and devote the proceeds to her own use, and that any cause of action for conversion of funds by Mrs. Cohen during or before 1925 would now be barred by the statute of limitations. (3a) That any right of action for conversion would be in the grantor, Mrs. Clarke, or her personal representative.

The judge ststained grounds 1 and 2 of the demurrer and dismissed the action, but stated in his order that grounds 3 and 3a were not passed upon at that time. To this ruling the plaintiff excepted.

Hirsch, Smith, Kilpatrick, Clay & Cody and Devereaux F. McClatchey, all of Atlanta, for plaintiff in error.

Arnold, Gambrell & Arnold, of Atlanta, for defendant in error.

GRICE Justice.

1. Mrs. Clarke's conveyance recited that it conveyed 'to her daughter, Mrs. Julia C. Cohen a life-estate, and to such children of the said Mrs. Cohen as she may leave surviving her the fee-simple interest in remainder after the termination of the life-estate.' Mrs. Cohen died, leaving surviving her one child, Mrs. Bienvenu. The property described in the deed fronted on both Peachtree and Juniper Streets in the City of Atlanta. There was nothing in the instrument to enlarge the character of the estate which went to Mrs. Cohen, expressly limited as it was to a life estate unless it was the following, which was contained in a subsequent portion of the deed: 'The power to sell or encumber that part of the avove-described property which fronts on the west side of Juniper Street and extends back westwardly to a depth of 210 feet, more or less, is hereby given to and vested in the said Julia C. Cohen, and in the exercise of said power the said Julia C. Cohen is hereby authorized and empowered to convey the entire fee-simple title thereto by her deed alone, either in the matter of a sale or otherwise.' The primary question to be determined is, What was the character of Mrs. Cohen's estate created in that part of the property which will be referred to as the Juniper Street frontage? Omitting for the moment the latter of the two above-quoted provisions of the deed, the estate of Mrs. Cohen by the express terms of the conveyance was limited to a life estate, the remainder estate being granted to Mrs. Bienvenu. The general rule is that where an estate is expressly given for life, with an added power of disposal conferred upon the life tenant, this does not enlarge the life estate into an estate in fee. 21 R.C.L. 776, § 5; Warren v. Ingram, 96 Miss. 438, 51 So. 888, Ann.Cas.1912B, 422, 424, note. A contrary rule prevails only where there is a grant or devise of an estate generally, or indefinitely, with a power of disposition over it, unless the power be necessarily inconsistent with an estate for life only. Cook v. Walker, 15 Ga. 457; Wetter v. Walker, 62 Ga. 142. The first of the two decisions last cited lays down the doctrine that, whenever an estate is given, in Georgia, either by deed or will, to a person generally or indefinitely, with the unlimited power of disposition annexed, it invariably vests the absolute fee in the first taker, and then declares: 'The only exception to the rule, thus broadly stated, is, where the donor or testator gives to the first taker, an estate for life only, by certain and express words; and annexes to it a power of disposal. In that particular and special case, it has been held, and the better opinion seems to be, that the donee or devisee for life, will not take an estate in fee, notwithstanding the distinct gift of the power of disposition. And by carefully marking this distinction, there will be found to be no confusion of collision in the authorities, upon this subject. (Jackson v. Robins, 16 Johns. 537.)' The italicized words so appear in the original text, which cites American and English cases in support of it. In Wetter v. Walker, 62 Ga. 142, 144, it is written: "A devise of an estate generally, or indefinitely, with a power of disposition over it, carries a fee. But where the estate is given for life only, the devisee takes only an estate for life,...