Headen v. Quillian

• Decision Date: 26 June 1893
• Citation: 92 Ga. 220,18 S.E. 543
• Parties: HEADEN et al. v. QUILLIAN et al.
• Court: Georgia Supreme Court

18 S.E. 543

92 Ga. 220

HEADEN et al.

v.QUILLIAN et al.

Supreme Court of Georgia.

June 26, 1893.

Trusts—Construction—Powers of Trustee. A deed executed the 4th day of December, 1865, by which the grantor conveyed to E., his heirs and assigns, a tract of land in trust for the sole and separate use of H., the wife of the grantor, for and during her natural life or widowhood, and after her death to such children as she may have living by the grantor, "with power in the said H. to empower the trustee, by writing under her hand, to sell any part or the whole of said trust estate, and to reinvest the proceeds by her written consent in such other property, subject to the above described trusts, as he shall deem most for the interest of said trust estate, " authorized the trustee, on the 4th day of May, 1877, with the written consent of H., to sell and convey, in fee simple, the land described in the deed; one or more of the children, at that time, not having arrived at majority.

(Syllabus by the Court.)

Error from superior court, Banks county; N. L. Hutchins, Judge.

Action by Headley E. Headen and others against William H. Quillian and others to cancel certain deeds, and for other relief. From a judgment sustaining a demurrer to the petition, plaintiffs bring error. Affirmed.

The following is the official report:

Headen and others, by their petition, alleged: They are the children of B. V. Head-en and his wife, Eliza C. Their father is dead, and their mother is still living. Some time before his death, on December 4, 18G5, their father executed a deed to M. Van Estes, by which, in consideration of his love and affection for his wife, he conveyed to Van Estes, in trust for her, certain land described, for her sole and separate use during her life or widowhood, and after her death to such children as she might have living by her said husband, share and share alike. By this deed, Van Estes was made trustee for Mrs. Headen, and no one else. She took an estate for life or widowhood, and was clothed with power to empower Van Estes, by writing, to sell any part or all of said trust estate, and reinvest the proceeds, by her written consent, in other property, subject to the trust Neither Mrs. Headen nor Van Estes could legally sell or convey any larger estate than for the life or widowhood of Mrs. Headen. In May, 1877, Van Estes, as trustee of Mrs. Headen, executed a deed conveying in fee simple to one Owen part of the land, which conveyance purported to have the voluntary and unqualified written approval of Mrs. Headen. Owen went into possession, and made various improvements, and afterwards sold to Quillian & Co. Petitioners were not parties to these sales and conveyances in any way, and their estate in the property did not pass by them. The deed from their father was on record before either of these sales was made, and neither Owen nor Quillian & Co. were innocent purchasers. The execution of the conveyances to Owen and to Quillian & Co. were frauds upon petitioners. The petition contained various allegations of waste, value of the property for rent, etc., not necessary to be here set forth, and prayed for injunction, decree for damages, cancellation of the deeds to Owen and to Quillian & Co., except as to the estate of Mrs. Headen in the property, etc. The defendants named were Quillian & Co. and their tenants. A copy of the deed from Headen to Van Estes was attached as an exhibit to the petition. By this deed the land was conveyed to Van Estes, his heirs and assigns, "in trust, nevertheless, for the sole and separate use of Eliza C. Headen, wife of the said Blakely V....