Hollis v. Lawton

• Decision Date: 18 March 1899
• Citation: 32 S.E. 846,107 Ga. 102
• Parties: HOLLIS et al. v. LAWTON et al. LAWTON et al. v. HOLLIS et al.
• Court: Georgia Supreme Court

32 S.E. 846

107 Ga. 102

HOLLIS et al. v. LAWTON et al.

LAWTON et al. v. HOLLIS et al.

Supreme Court of Georgia

March 18, 1899

Syllabus by the Court.

1. A conveyance by deed of land to one as trustee for "his wife and the children, issue of their marriage," included as beneficiaries of the trust only the wife and such of her children of the marriage with the trustee as were in life at the time of the execution and delivery of the deed. When the youngest of such beneficiaries reached the age of majority, the trust became executed, and the legal title to the property vested in them.

2. It follows from the above that a suit could not be maintained by the wife and all the children of the marriage, including several children who were born after the execution of the trust deed, to set aside a sale of the property, on the ground of fraud, made by the trustee after the trust had become executed; to re-establish the trust in the property to remove the trustee on account of mismanagement, and to appoint another trustee in his place to take charge of the property in the interest of the plaintiffs as the cestuis que trustent.

Error from superior court, Bibb county; W. H. Felton, Jr., Judge.

Action by Mariah A. Hollis and others against Carrie W. Lawton and Jerry Hollis, Sr. From the judgment both parties bring error. Judgment on cross bill reversed, and main bill dismissed.

Preston & Ayer, R. C. Jordan, and Hall & Hardeman, for plaintiffs in error.

Guerry & Hall, and Hardeman, Davis & Turner, for defendants in error.

LEWIS J.

At the April term, 1898, of Bibb superior court, there was tried the case of Mariah A. Hollis and her children, five of whom were minors, suing by their next friend, against Carrie W. Lawton and Jerry Hollis, Sr., alleged to be the trustee of the plaintiffs. It appeared from the petition that on the 29th day of December, 1875, Leonard Y. Gibbs conveyed by deed to "Jerry Hollis, trustee of his wife, Mariah A. Hollis and the children issue of their marriage," a certain tract of land. This land, including some smaller tracts which it seems had been exchanged for certain small portions of the original tract, was conveyed in a deed from Jerry Hollis, as trustee for his wife and children, to R. F. Lawton, on April 11, 1887, in consideration of the sum of $9,500. R. F. Lawton died, and on March 12, 1892, his will was admitted to probate, in which he bequeathed and devised to his wife, Carrie, W. Lawton, all of his property. Under that will she passed into possession of the premises in dispute as sole devisee of her husband.

It was alleged in the petition that the sale by Hollis, trustee, to Lawton, was made for the purpose of paying the individual debt due by the trustee to Lawton, for which the estate was in no wise liable, and also, for the purpose of paying other individual indebtedness of Jerry Hollis; that Lawton knew of such purpose, applied a large portion of the money to his individual debt, and colluded with Hollis in the misappropriation of a portion of the other proceeds of the sale in the payment of Hollis' individual debts. It appears, however, that a part of the proceeds of the sale, to wit, about $2,500, was invested in other lands for the benefit of the wife and children, and the plaintiffs offered to do equity as to that amount by allowing it as a charge on the premises in dispute. The purposes of the petition, as amended, were to have the sale of Hollis, trustee, to Lawton set aside as fraudulent; to recover of Carrie W. Lawton the trust property conveyed by said sale; to re-establish the trust thereon; to remove Jerry Hollis, trustee, from his office for mismanagement and waste of the trust estate, and to have appointed in his stead one of the plaintiffs as trustee to take charge of and manage the estate for the beneficiaries. It further appeared that all the children who were in life at the time of the conveyance from Gibbs to Jerry Hollis, trustee, were of age, or had passed the age of majority, when Hollis, trustee, conveyed the property to Lawton, on April 11, 1887. The petition was brought against the trustee, Jerry Hollis, and Carrie W. Lawton, sole devisee under the will of her husband. To the petition and the amendments thereto the defendants filed a demurrer upon several grounds; among others, on the ground that the five minors who were made parties plaintiff were not proper parties in the case, because the deed set out as an exhibit to the petition, by virtue of which they claim an interest in the land in dispute, conveyed to them no title to or interest in the property. There was also a special ground of demurrer to so much of the prayer in the petition as prays for some other person to be appointed in the place and stead of Jerry Hollis, on the ground that said trust is an executed trust, and no trustee is needed in the place of the said Jerry Hollis. The demurrer was overruled on all the grounds, to which judgment defendants filed exceptions pendente lite. After the plaintiffs had closed their testimony, the court, upon motion of defendants' counsel, awarded a nonsuit, to which judgment, and various rulings of the court in the progress of the trial, plaintiffs assigned error in their bill of exceptions. Defendants likewise assigned error in their cross bill of exceptions on the judgment overruling their demurrer, to which judgment exceptions pendente lite were filed.

The vital question that meets us at the threshold of this case arises in the cross bill, and is whether or not the words of the deed from Gibbs to Hollis, trustee, executed in 1873 included only such issue of the marriage between himself and his wife as were in life at the time the conveyance was made, or whether it also included children that might be born to them thereafter. We therefore deal first with this question. See Cheshire v. Williams, 101, Ga. 814, 29 S.E. 191; Gay v. Gay (this term) 32 S.E. 846. If it included only the children then in life, it is conceded that the trust was executed prior to the conveyance made by Hollis, trustee, to Lawton, that the title had before then vested in the beneficiaries, and that,...