Lester v. Stephens

• Decision Date: 21 May 1901
• Citation: 39 S.E. 109,113 Ga. 495
• Parties: LESTER et al. v. STEPHENS et al.
• Court: Georgia Supreme Court

39 S.E. 109

113 Ga. 495

LESTER et al. v. STEPHENS et al.

Supreme Court of Georgia

May 21, 1901

Syllabus by the Court.

1. A trust created by a will executed in the year 1900 for the benefit of the testatrix's brother and sisters (naming them), who, at the time of the execution of the will and at the time of the death of the testatrix, were sui juris, and had no intemperate, wasteful, or profligate habits and without limitation over, was executed at the time of the death of the testatrix, and as against the trustee the beneficiaries were entitled to the property.

2. The third item of the will, which appoints the husband of the testatrix the trustee for her brother and sisters, which directs him to take charge of all the property given them as such trustee, and as executor of the estate, and to keep the real estate together, and which forbids his disposing of it but provides that he shall have the sole and exclusive control and management of it during his life, to be managed as he may deem best, with power to purchase stock, and "run the farm," sell any personalty he may deem advisable, and dispose of timber on the land, does not give the husband a life estate in the property, nor any use or interest in the same as an individual.

3. As the title to the devises and legacies did not pass to the beneficiaries until the executor had assented thereto, they could not recover the property from him without alleging an assent or a refusal to assent, although the estate owed no debts. (a) A court of equity may compel the executor to assent in a case where he unreasonably refuses to do so.

4. The time allowed by the Code in which executors and administrators are exempt from suit does not apply to suits by legatees and devises to restrain the executor and others co-operating with him from wasting the estate by cutting and selling timber from the land, the executor being insolvent and having given no bond, and claiming a life interest in the estate antagonistic to the claims of the plaintiffs and to a proper construction of the will.

Error from superior court, Webster county; Z. A. Littlejohn, Judge.

Bill by J. H. Lester and others against Peter Stephens, executor, and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

Hatcher & Carson, for plaintiffs in error.

J. H Martin and E. T. Hickey, for defendants in error.

SIMMONS C.J.

In May, 1900, Mrs. Stephens made her will. She died in the following July. So far as the will is material to the present case, its exact terms are shown by the official report, supra. By it she gave her brother and sisters all of her property. In the third item she undertook to create a trust in the property given, and to appoint her husband, Peter Stephens, trustee. Her husband was also appointed executor. She directed that her husband should have full control and management of the property for the term of his natural life. The husband qualified as executor, and took possession of the property. In December, 1900, the brother, two of the sisters named in the will, and the husband and children of the other sister (who had died subsequently to the death of the testatrix) filed an equitable petition against Stephens, as executor and trustee, and two others. The petitioners claimed to be the sole devises and legatees under the will, alleged that the estate owed no debts, and that there was no necessity for administration, and claimed that the trust attempted to be created was executed at the death of the testatrix, as all of the beneficiaries were sui juris, and had no intemperate, wasteful, or profligate habits. They also alleged that Stephens claimed a life interest in the property, that he was insolvent, and had given no bond, and was incompetent to manage the estate. They also alleged that he was wasting and mismanaging the estate, having made a contract with his co-defendants to cut, saw, and sell the trees and standing timber upon the land, and that he was in other respects mismanaging the estate. They prayed for a construction of the will, that the trust be declared to be executed and void, that the executor be compelled to turn over the property to them as there was no necessity for administration, and that the defendants be restrained from committing the acts of waste and mismanagement alleged. Stephens answered, claiming that under the will he had a life estate in the property devised and bequeathed, admitting his insolvency, but denying his incompetence to manage the estate, and denying that he was committing the acts of waste and mismanagement set out in the petition. His answer also admitted that the estate owed no debts, but claimed that he could not be sued before the expiration of 12 months from his qualification as executor. The other defendants answered, denying that they, in conjunction with Stephens, were committing waste, and claiming that they were improving the property. Affidavits were submitted by each side, but it is unnecessary to set them out here. At the hearing the trial judge refused the injunction, and the plaintiffs excepted.

1. The testatrix, by her will, undertook to create a trust for her brother and sisters, who were sui juris, and had no intemperate, wasteful, or profligate habits. This, under section 3149 of the Civil Code, she could not do. When, therefore, she died, the trust became immediately executed.

2. The trial judge, whose opinion appears in the record, took the view above...