Crowley v. Crouch

• Decision Date: 07 November 1901
• Citation: Crowley v. Crouch, 114 Ga. 135, 39 S. E. 904 (Ga. 1901)
• Parties: CROWLEY v. CROUCH.
• Court: Georgia Supreme Court

39 S.E. 904

114 Ga. 135

CROWLEY v. CROUCH.

Supreme Court of Georgia

November 7, 1901

Syllabus by the Court.

1. In disposing of a petition by a trustee against a cotrustee both of whom had been appointed by will, in which petition the plaintiff not only prays for the removal of the defendant from his trust, but also sets forth the will, together with a statement of the defendant's rights thereunder as claimed by the plaintiff, and where the defendant sets up in his answer reasons why he should not be removed, denies that plaintiff's construction of the will as to the defendant's rights thereunder is correct, and by cross petition prays for a decree fixing his individual rights in the property in question, the court has before it not only the question of removal or nonremoval, but also that of passing on the prayer of the cross petition.

2. Under the terms of the will in this case, the defendant in error took a life estate in the property in question, subject to be devested in the event such property should be sold by him as trustee.

Error from superior court, Floyd county; W. M. Henry, Judge.

Action by Mrs. Crowley, as next friend of James Crouch and John Crouch, for the removal of James T. Crouch, cotrustee. From the judgment, Crowley brings error. Reversed.

W. J Neel and Lipscomb & Willingham, for plaintiff in error.

Denny & Harris, for defendant in error.

FISH J.

These material facts we gather from the record in this case: Mrs Lillie M. Crouch died testate in 1899, her will being executed a few days prior to her death, and written by herself. The portions of it pertinent to the questions presented are: "I *** give, bequeath, and devise my earthly belongings as follows: *** Second. My house and lot with improvements thereon, to my aforesaid children (James Turner Crouch and John Crowley Crouch), to be held in trust for them by their father, James Turner Crouch, and my mother, Mrs. John Crowley; said house, if in their judgment should be sold, proceeds to be invested for their benefit in some other equally paying or better investment. Third. My drug stock and fixtures, with soda fountain and apparatus, likewise held in trust for my two children; and if their father should see fit to dispose of it, or change his investment, that he will make use of proceeds for the children's benefit in some other investment, after outstanding debts of mine are paid. This stock consists of nineteen shares of stock in Hale-Jarvis Drug Company, duly incorporated. All this property is to be enjoyed by my husband as long as he lives, and no one shall have any power to hasten him out of the house or business as long as it is his pleasure to continue them the same." The will was duly probated in common form. In October, 1900, all the property mentioned in the third item, viz. the stock in the drug company, etc., was sold under an order of court applied for by Mrs. Crowley and James Turner Crouch, as trustees, for the support, maintenance, and education of their cestuis que trustent, as well as for the purpose of paying off a lien upon the house and lot mentioned in the second item of the will. The property brought $5,000,--$1,000 in cash, and the balance in monthly installments of $100 each, for which the purchasers gave their notes. In March, 1901, Mrs. Crowley, as next friend of James Turner Crouch and John Crowley Crouch, applied to the judge of the superior court for the removal of her cotrustee, James Turner Crouch, her petition charging gross mismanagement and misconduct on his part in reference to his trust, and that since the death of his wife he had become an unfit person to discharge the duties of trustee for the children. The petition alleged, in substance, that under the will of Mrs. Crouch--a copy of which was attached as an exhibit--James T. Crouch was given the right to the use and enjoyment of the property mentioned in the second and third items of the will only so long as it should remain unsold, but that, if sold, the proceeds were to be reinvested for the benefit of the children; and that he was to have no interest in the proceeds or the property in which they might be invested. It also alleged that the property mentioned in the third item of the will had been sold as hereinbefore stated. The prayers of the petition were for the removal of James Turner Crouch as trustee, or that he be required to give a bond for the faithful discharge of the duties of his trust, and for general relief. The respondent, in his answer to the petition, denied that the will only gave to him the use and enjoyment of the property mentioned so long as it should remain unsold, and alleged that the will gave him a life estate in such property, not subject to be terminated by the sale thereof, and that during his life petitioner had no right to use or manage the same. After making certain charges, the answer concluded with the prayers that respondent be authorized to reinvest the proceeds of the sale of the stock in the drug company, etc., in "some other business,...