Howell v. Wilson

• Decision Date: 29 February 1912
• Parties: HOWELL et al. v. WILSON et al.
• Court: Georgia Supreme Court

74 S.E. 255

137 Ga. 710

HOWELL et al. v. WILSON et al.

Supreme Court of Georgia

February 29, 1912

Syllabus by the Court.

Where a person negotiating for the sale of land caused the title to be investigated, and refused to buy because the trustee and others specifically named in a trust deed and others, some of whom might take in remainder under such deed, the same being the deed through which the proposed seller claimed by grant from the trustee, orally proclaimed that only an estate for the life of one of the persons designated in the trust deed as a cestui que trust passed by the trustee's conveyance and upon the death of such life tenant the fee would vest in other persons contemplated in the trust deed, the tenants in remainder being indeterminate until the death of the life tenant, held, the fact that the negotiating purchaser refused to buy merely because such questions were so raised and urged did not entitle the proposed seller before the death of the life tenant, to proceed against the trustee and the life tenant and possible contingent remaindermen contemplated by the trust deed to quiet his title and remove the alleged claim as a cloud upon it.

The ruling announced in the preceding headnote controls the case and it is unnecessary to deal with other assignments of error made in the bill of exceptions.

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Action by H. L. Wilson and others against L. I. Howell and others. Judgment for plaintiffs, and defendants bring error. Reversed.

Henry L. Wilson, Jack J. Spalding, W. T. Ashford, and Mrs. Susan W Allgood brought suit against Mrs. Lizzie Ida Howell, Mrs. Eleanor Howell Gunby, Clark Howell, Sr., trustee, Edgar Roberts, and Louise Roberts. The substance of the petition, so far as is now material, was as follows:

In 1866 N.E. Gardner executed and delivered to C. W. Dill, as trustee, the following conveyance: "This indenture, made and entered into this the 4th day of July in the year of our Lord one thousand eight hundred and sixty-six, between Nathaniel E. Gardner, of the county and state aforesaid, of the one part, and Charles W. Dill, of the same place, trustee for Eliza Ida Gardner and Mary Ellen Gardner, children of the said Nathaniel E. Gardner, all of the said county, of the other part, witnesseth that whereas, the said Nathaniel E. Gardner, being free from debt and being desirous of securing to his said daughters, Lizzie Ida Gardner and Mary Ellen Gardner, and their children by any future husband, a maintenance, support, and education, and being seised and possessed of the estate hereinafter mentioned, being acquired by purchase: Now, therefore, said Nathaniel E. Gardner, for and in consideration of the natural love and affection that he has and bears to his said daughters, Lizzie Ida and Mary Ellen, and for the purpose of providing a support, maintenance, and education for them, and also in consideration of the sum of $10 to him paid, the said Nathaniel E. Gardner, in hand paid at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, and conveyed, and doth by these presents grant, bargain, sell, and convey, unto said Charles W. Dill, trustee as aforesaid, and to such other trustee or trustees as may hereafter be appointed in the place and stead of the said C. W. Dill, or his successors, trustees for the said Lizzie Ida and Mary Ellen or their children, the following named property, to wit: [Omitting description of the property.] To have and to hold the said named property to the said Charles W. Dill, trustee, as aforesaid, with all the rights, members, and appurtenances thereof, together with all the improvements now being made thereon and such improvements as I may choose hereafter to make thereon, and to such other trustees as may hereafter be appointed for the said Eliza Ida Gardner and the said Mary Ellen Gardner, in trust for their sole and separate use, benefit, and behoof, for and during their natural lives, and at their deaths, or the death of either of my said daughters, to be equally divided, share and share alike, among the children; but in case that either of my said daughters should depart this life leaving no child or children, or the issue of a child or children, in life at her death, then and in that event the said property to go to and vest in the other daughter, or in case of her death her child or children, or issue of child or children, if there should be any living, but if my other daughter should be dead without child or children, or the issue of child or children, living, then to go to and vest in any other child or children that I may have living, share and share alike. I hereby further direct that my two daughters shall own said property in common during their minority, or until one or the other of them shall marry; but when they shall attain the age of 21, or either the one or the other of them shall marry, I direct that said property shall be divided equally between them by three competent disinterested men, who shall be elected by their trustee for that purpose, who shall enter upon and make a fair estimate of said property, not only in relation to its permanent value, but also in relation to its average proceeds and profits, and when so estimated the property shall be described on a separate list of said appraisers and folded carefully and put in a hat, and my daughters shall draw for the same, the oldest being entitled to draw, and the estate of my daughters shall thus be made separate; and I hereby further direct that Charles W. Dill, trustee as aforesaid, shall advance to my daughters, if necessary, the whole of the income or profits of the property aforesaid, that he shall educate them in good style, and furnish them means and facilities to qualify and sustain them in the best society, and that neither of them shall be accountable to the other for any part of the proceeds of said estate, but they shall each use said proceeds as their circumstances may require until said division shall be made, when their estate shall become individual and separate; but before said estate shall be divided, if there should be an accumulation of means sufficient to buy a piece of property of any considerable value, then I direct that said proceeds shall be invested in property of substantial value which will afford a fair and reasonable profit, with prospect of permanent increase, which property shall be subject to the same division, limitation, and restrictions as the estate hereinbefore and hereinafter set forth. I hereby further direct and require that no part or portion of the corpus of said estate shall ever be sold until the life estate is ended, for any purpose whatever, unless it should become less profitable than ordinary investments, or my daughters shall desire to change their residence to some other locality, or for some other like good and substantial reason; but if such reason should ever exist, the fund shall be reinvested, and before said sale shall be made I hereby direct that full and satisfactory reasons shall be given and clear and sufficient proof be made to the chancellor granting said order that such necessity exists, and that the proceeds of the same when made shall be reinvested in like property, or property as substantial in permanent value and as productive in its yield of profits. I herein again direct that said property, at the death of either of my said daughters, shall vest in and become absolute fee-simple estate in their child or children, or the issue of their child or children; but if either or both of them should die without leaving child or children, or the issue of child or children, living at the time of their death, then said property shall be subject to the limitations and restraints hereinbefore set forth."

In 1872 Dill, as trustee, procured an order at chambers from the judge of the superior court of Fulton county to sell the land conveyed to him as trustee, or so much of it as was necessary to satisfy certain judgments which had been rendered against him as trustee on debts against the grantor existing prior to the execution of the deed, to pay taxes due by the trust estate, and to pay for certain necessary repairs made upon the trust property. At a public sale made in pursuance of such order the plaintiff Henry L. Wilson purchased certain portions of the land conveyed in the trust deed. Another person bought some of the land so sold, and subsequently conveyed it to Wilson. There were other purchasers of different parcels of the land at such sale, under whom Spalding, Ashford, and Mrs. Allgood respectively hold under mesne conveyances. Dill resigned the trust in 1874, and Clark Howell, Jr. (now Sr.), who had married Lizzie Ida Gardner, one of the cestuis que trustent, was appointed in his stead, and accepted. Mary E. Gardner, the other cestui que trust, died in childhood, prior to the resignation of Dill.

Mrs Howell is still in life. In 1878 Howell, as trustee, obtained an order from the judge of the superior court of Fulton county to sell at private sale other portions of the land of the trust estate to Westmoreland, as trustee, and in pursuance of such order a sale was consummated by a deed from Howell, as trustee, to Westmoreland, as trustee, executed and delivered in September, 1878. The parcels of land conveyed to Westmoreland are now respectively owned by Spalding, Ashford, and Mrs. Allgood, except small parts since sold by them under warranty deed. The proceedings to obtain this last order and the order itself were by inadvertence never entered on the minutes of the court, or otherwise recorded, and the original papers have all been lost. Mrs. Howell has only one living child now, Mrs. Gunby; her other...