Lamar v. Pearre

• Decision Date: 22 July 1889
• Citation: 9 S.E. 1043,82 Ga. 354
• Parties: LAMAR et al. v. PEARRE.
• Court: Georgia Supreme Court

9 S.E. 1043

82 Ga. 354

LAMAR et al. v. PEARRE.

Supreme Court of Georgia

July 22, 1889

Syllabus by the Court.

1. A trust created by will being nominally for the testator's daughter and her children, born and to be born, but the daughter to have the possession, profits, use, enjoyment, and control of the property during her life, and at her death the same to be divided among her surviving children, and the children of her deceased children, the appointment of a new trustee for the daughter alone, made at chambers, under the act of February 20, 1854, upon the joint petition of her and the original trustee, without representation or consent of the children, did not invest the trustee so appointed with the legal fee, but only with a legal estate commensurate with the daughter's equitable estate for life. If the original trustee was clothed with an executory trust for the remainder-men, he continued clothed with it, notwithstanding his discharge as trustee for the beneficiary of the life-estate.

2. A sale and conveyance of the land afterwards made by her second trustee, as such, under an order granted in term upon his ex parte petition, to which only she assented, her children not being represented in the proceeding nor made parties thereto, passed an estate for her life only, although the deed purported to convey the fee, and the purchaser paid full value.

3. Until the death of the daughter, the statute of prescription did not begin to run in favor of the purchaser against the children and grandchildren; their estate in remainder whether vested or contingent, legal or equitable, being attended with no right of entry or of action by themselves or by any one for them, while she was in life.

Error from superior court, Columbia county; RONEY, Judge.

Action of ejectment by John Doe d. Lamar and others against Richard Roe, ejector, and B. E. Pearre. Judgment for defendant Pearre. From order denying a new trial plaintiffs bring error.

Dessan & Bartlett and McNeill & Levy, for plaintiffs in error.

W. M. & M. P. Reese, for defendant in error.

BLECKLEY C.J.

The will of Gazaway Davis, (who died in 1845,) reciting that the testator was desirous to place his daughter, Mary Ann Lamar, wife of Henry G. Lamar, and the children she then had, and might thereafter have, free from the burden of want, by securing to her and them property, both real and personal, constituted Gazaway D. Lamar trustee for her and her children, "as herein provided." It then proceeded to give and devise to Gazaway D. Lamar, slaves, livestock, household and kitchen furniture, farming utensils, corn, wheat, and other personality, and the plantation in Colombia county now in dispute, together with other real estate; this clause of the will concluding as follows: "To have and to hold the aforesaid property as trustee for my aforesaid daughter, Mary Ann Lamar, and the children she now has, or may hereafter have, for and during her natural life; the same, together with the increase and profits, to remain in her possession, use, occupation, enjoyment, and control while living, and after her death the same to be equally divided, share and share alike, between her surviving children and her grandchild or children. Should any of her children have departed this life leaving a child or children, in such event said grandchild or children is or are to receive the respective portion which his, her, or their father or mother would have received were said father or mother still living, to have and to hold the same, to them and their heirs, forever." The will bore date in 1843. How many children Mrs. Lamar had at that time or at the death of her father does not appear. She died in May, 1882, leaving surviving her six children, nine having previously died, one of whom left a child. This action of ejectment was brought February 3, 1885, by John Doe, upon the demise of four of the surviving children, the grandchild left by a deceased son, and seven other grandchildren, the children of a daughter who died subsequently to the death of Mrs. Lamar; the defendants being Richard Roe as casual ejector, and B. E. Pearre as tenant in possession. The premises sought to be recovered are the plantation in Columbia county devised by the will. The defendant claimed title both by conveyance and by prescription. His muniments of title consisted of the following documents:

(1) A petition to Hon. HENRY G. LAMAR, judge of the superior court of the Macon circuit, exercising jurisdiction in chancery. It was signed by Mary Ann Lamar and Gazaway D. Lamar, and purports on its face to be the joint petition of her, and of him as her trustee. It represented that he was appointed her trustee by the last will and testament of Gazaway Davis, as well as by an order of the superior court of Bibb county, to both of which it asked leave to refer, without setting them forth. It represented that he had up to that time faithfully performed the duties of said trusteeship; that he had removed out of the county of Bibb, and could not, therefore, continue to perform such duties without great inconvenience to himself as well as to the cestui que trust; that he held lands in common with her, and wished to convey a more perfect title to her by way of trusteeship than she then had. For these reasons it prayed for an order changing the trusteeship held by him, and for the appointment of John Lamar, or some other fit and proper person, as trustee for her, and in lieu and instead of Gazaway D., and that the latter be discharged from any further duty connected with said trusteeship. The petition is without date, and annexed to it is a certificate signed by John Lamar, that he was willing to receive the appointment of the trusteeship referred to in the petition, and would accept and faithfully perform the duties thereof if appointed. Then comes an order in chambers, dated July 12, 1858, signed by HENRY G. LAMAR, judge of the superior court of the Macon circuit, reciting that upon the petition of Mary N. Lamar and Gazaway D. Lamar, her trustee, it appeared that Gazaway D. had been appointed the trustee by the last will and testament of Gazaway Davis, as well as by an order from this court, and that it was for the best interest of the estate held by him in trust for her that said trusteeship should be changed, and some other fit and proper person appointed instead of him, and that it appeared from the certificate of John Lamar that he was willing to accept the appointment, and ordering that Gazaway, D. Lamar be discharged from the duties of said trusteeship, and that John Lamar be appointed the trustee for her in his stead, and that this order be entered on the minutes of Bibb superior court.

(2) A petition signed "JOHN LAMAR, Trustee for Mary Ann Lamar," addressed the same as the preceding petition and on its face purporting to be the petition of John Lamar, trustee for Mary Ann Lamar, and representing that on the 12th of July, 1858, he was appointed trustee for her in lieu and instead of Gazaway D. Lamar, who had been appointed to said trusteeship by the last will and testament of Gazaway Davis, and who resigned said trusteeship on the day aforesaid; that John Lamar now holds, as trustee aforesaid, a large tract of land in the county of Columbia, besides lands in the county of Baker, and a number of negroes; that by reason of the unproductiveness of the Columbia land, and the superior advantages and convenience of the Baker land, both to the trustee and the cestui que trust, it would be greatly to the benefit and interest of the trust-estate that the Columbia land should be sold, and the negroes thereon removed to the county of Baker; that the trust-estate is incumbered with a debt, to discharge which it will become necessary to sell some portion of said estate. Therefore he prays an order...