East Rome Town Co. v. Cothran

• Decision Date: 11 February 1889
• Citation: 8 S.E. 737,81 Ga. 359
• Parties: EAST ROME TOWN CO. v. COTHRAN et al.
• Court: Georgia Supreme Court

8 S.E. 737

81 Ga. 359

EAST ROME TOWN CO. v. COTHRAN et al.

Supreme Court of Georgia

February 11, 1889

Syllabus by the Court.

A deed made in 1857, conveying realty to a man "for the use benefit, advantage, and in trust for his wife, and the child she now has, and those she may hereafter have," "to be held by him in trust for said wife and child during his natural life, and upon his death the same to go to them, or the survivor or survivors of them, in fee-simple; or, should he survive his said wife and children, to him in fee-simple free from the trust; but so long as any of the cestuis que trustent survive, to be held by him as their trustee, free from his debts, liabilities, and contracts,"--passed to him in trust the legal estate for the term of his life, and no longer; the alternative remainder in his family of himself being a legal remainder not covered by or embraced in the trust.

The rule that, when the trustee is barred by prescription, the beneficiaries are also barred, means that when the legal estate is barred so is the equitable estate. In any given case, therefore, the bar is restricted to the measure of the legal estate which the trustee takes by the conveyance. When he takes the legal fee, the bar extends to the whole fee, legal and equitable; but, when he takes less than the fee, he represents less than the fee, and the bar is restricted to what he represents.

According to Hill v. Printup, 48 Ga. 452, a trust-estate in which minors are the beneficiaries cannot be legally sold on the petition of the trustee, unless the minors are made parties by a representative properly appointed.

Granting that a sale made under an order obtained without representation of the minors might be duly confirmed at chambers, with such representation then had, the order of confirmation, if passed by a judge of the superior court who was of counsel when the original order was passed, would be voidable, at the election of the minors, after attaining majority.

The question of estoppel by standing by and seeing expensive improvements made upon the premises, and failure to object, depending, in part, upon proof to be made at the trial, the discretion of the chancellor in granting a temporary injunction until the facts involved can be tried by a jury will not be controlled.

The same rule applies to the alleged equitable obligation to account for the substituted property which the trustee has put in place of the property now directly in controversy.

Error from superior court, Floyd county; MADDOX, Judge.

Underwood & Rowell, Hopkins & Glenn, and J. Branham, for plaintiffs in error.

C. A. Thornwell, C. N. Featherston, Halstead Smith, Dean & Ewing, and D. B. Hamilton, for defendants in error.

BLECKLEY C.J.

1. The deed presented for our construction was made by Alfred Shorter to D. B. Hamilton, December 12, 1857. The essential terms of it are set out in the first head-note to this opinion. Except as there appear, there were no words of inheritance. The question is, what was the legal estate taken by Hamilton as trustee? According to our statute of 1821, words of inheritance are not required in a conveyance to pass a fee-simple, but the authorities all concur that, in creating a trust-estate, the trustee, without words of inheritance,--and in case of wills, with them,--takes only such quantity of estate as is necessary for the purposes of the trust. Lewin, Trust 216, 217; 1 Perry, Trusts, §§ 312-319, inclusive; Code, § 2340. Trying the present deed by this rule, and whether we consider the purpose of the trust or the terms of the deed, we find that the trust-estate was limited to the life of the trustee. It is obvious that upon his death there would be nothing for his successor in the trust to take. Thus the deed itself expressly limits the legal estate, which he takes in trust, to the term of his own life. It could not by any possibility exist longer, though by the death of all his family it might terminate sooner. The alternative remainder in his family or in himself, whether regarded as vested or contingent, was a legal remainder,--as much a legal estate as was the title of the trustee for the period embraced in the trust. It is manifest that the legal title of the trustee cannot envelop within it legal remainders. The only remainders that can be so enveloped are equitable remainders.

The construction which we give to this deed is supported by a number of cases heretofore decided by this court. The one most directly in point is that of Franke v. Berkner, 67 Ga. 264. Jacob Russell was the trustee, and the limitation was: "To have and to hold said property, and all rights of property, to the said Jacob Russell, his heirs and assigns, forever, upon the trusts following, to-wit: To the use of said John Berkner and his wife, Margaret Berkner, and the children of her body lawfully begotten by said John Berkner, to the exclusion of his and their children by any other marriage, during the natural ___ of said John and Margaret, and during the natural life of the survivors. At and from the death of said John and Margaret this trust to cease, and the property and increase thereof to be equally divided between their children, the issue of their marriage to the exclusion of all others, and to said children forever; the grandchildren, in case the parents be dead, to take the place of their parents." It was held that the legal estate of Jacob Russell, the trustee, was limited in duration to the lives of John and Margaret Berkner, and that, although their children were joint beneficiaries with them so long as they (the parents) lived, the remainder to the children was a legal estate, and that the trustee did not represent that remainder. To the same effect, so far as this case is concerned, is Rogers v. Pace, 75 Ga. 436; and almost equally decisive is Bull v. Walker, 71 Ga. 195. Vanzant v. Bigham, 76 Ga. 759, looks in the same direction. The aggregate weight of the four cases which we have cited would seem to furnish irresistible authority for the construction which we have announced. At first view, the case of Wingfield v. Virgin, 51 Ga. 139, would seem to militate with these decisions, but it is susceptible of an easy reconciliation with their purport. Upon looking at the terms of the conveyance in Wingfield v. Virgin, it is obvious that the question of whether the children took a legal remainder, had it been directly made, could have been decided in the affirmative; but that question was not made, inasmuch as the purpose of the bill filed by the children and their mother was to reinstate the trust and obtain an accounting for the income of the property, not after the death of the parents, but for a period which had elapsed while they were alive. The decision of the court was that that bill was barred. Why was it barred? Because Wylie, the purchaser, had bought in good faith, and held for seven years or more, as against the trust title; and that title, though it may have been limited to the life of Weems and wife, was barred by such holding. The trust-estate was therefore gone, and, of course, with it the right to recover income to which the trustee or the beneficiaries pending his term would have been entitled. The court did not undertake to adjudicate how long the trust-estate continued, but only that, the trustee being barred, the beneficiaries could not have the trust reinstated so as to have the trust-term go on for their benefit, and so as to recover the rents and profits to which the trustee had the legal title. It was not, and never has been decided that the children, after the death of Weems and wife, could not recover the property upon their legal title as remainder-men. The like criticism may be made on the case of Varner v. Gunn, 61 Ga. 54. There, also, the proceeding was had during the life of the tenant for life, and there could be no doubt that the trust covered the whole period of her life. So, in the present case, the trustee would be barred, and consequently the beneficiaries for whom he held would be also barred, during the period for which, as trustee, he held the legal title, to-wit, for the life of himself or of his family, whosoever should die first.

Another authority which might be adduced, were it a correct decision would be the case of City Council v. Radcliffe, 66 Ga. 469; but that case, on account of an oversight, was not well decided. The deed there adjudicated upon was made in 1847, to a trustee, in trust, forever, for the sole and seperate use of a married woman during coverture, and then during her widowhood or natural life, and at her death or marriage the premises were to go to and vest in her child or children then in life; and, in the case of the death of any such child or children, during her mother's life or widowhood, leaving issue alive, such issue were to take the place of the parent; and if such child, or the issue of such child, were female, then the trustee was to hold its part or portion in trust for her sole and separate use, not liable to the control, disposal, or debts of any husband of such female beneficiary, with power in the trustee, by and with the consent and approbation of the person or persons for whose use he might at any time hold the property, and without the decree or order of any court, to sell and dispose of it, and reinvest the proceeds in other property, real or personal, upon the same trust, and no other. What the court...