Matthews v. Hudson

• Decision Date: 12 July 1888
• Citation: 7 S.E. 286,81 Ga. 120
• Parties: MATTHEWS et al. v. HUDSON et al.
• Court: Georgia Supreme Court

7 S.E. 286

81 Ga. 120

MATTHEWS et al. v. HUDSON et al.

Supreme Court of Georgia

July 12, 1888

Syllabus by the Court.

A devise made in 1854 by a mother to a trustee for her son and, if the son should die without a child or children, the trustee to sell and make an equal distribution of the proceeds of sale, and place the same in the hands of another trustee for the other children of the testatrix, created in the son a fee, determinable upon his dying without a child or children, and the other children were intended to take by executory devise, and not by contingent remainder, and no remainder was created by implication in the child or children of the son. It follows that neither of these classes can interfere during the life-time of the son to prevent him from committing waste upon the devised premises.

Error from superior court, Jefferson county; HINES, Judge.

R. W Carswell and Whigham & Hudson, for plaintiffs in error.

Cain & Polhill, for defendants in error.

BLECKLEY C.J.

The will does not expressly limit the son's interest, as beneficiary, to his life, nor is anything appointed for the trustee to do except to sell, distribute the proceeds, and pay them over to another trustee in case of the son's death without child or children. No power of sale or management is conferred on the trustee to be exercised during the life of the son, and the trust was to become active in the one event only; that is, death without child or children. The devise, legally speaking, as to the measure of the estate taken by the son, is not materially different from what it would have been if no trustee had been interposed, but the gift made directly to the son, and then to the other children of the testatrix, on the contingency mentioned. The trust has no significance in measuring the estate, but is virtually a power of sale, etc., exercisable alone on the given contingency. In case of death with children, the trustee will have as little to do after death as before; that is, nothing whatever. The testatrix appointed a trustee, and invested him with the formal legal title, so that he might appear on the scene for the execution of a specific power if a certain contingency happened. Upon the happening of that contingency and in that event only, was the fee in behalf of the son to be defeated. The devise was in trust for him, not merely for his use and enjoyment, but the title was put in the trustee for him, without any limit as to time, save on the single condition of death without immediate off spring. Should he die with such offspring, there would be nothing to cut down reduce, or determine his estate in the property. The contention is, on the part of the complainants in the bill, that the son took but an estate for life, with remainder to his children, if any, and, if none, then the remainder went over to the other children of the testatrix. Estates by implication are not favored, and the supposed remainder in behalf of the son's children rests wholly on implication. The implication, in this case, is a possible, but not a necessary, one, for the terms of the will are quite as consistent with an intention on the part of the testatrix to give the absolute fee to her son, in case he had children, as to give a life-estate only with remainder to such children. There was on her part no want of confidence in the intelligence, discretion, and virtue of the son, for she not only, in another part of the will, gave to him, directly and absolutely, slaves and other personality, but constituted him the trustee for her other children; and it would be to his successor in this trust that his own trustee would have to account for the proceeds of the land in question in case he had to administer it by reason of the son's dying childless. The beneficiary of the first trust (the son) was appointed trustee to take and hold the testatrix's bounty to the beneficiaries of the second trust, (her other children.) While she constituted another trustee for him as to this land, she constituted him trustee for her other children as to what she gave them out of her estate, including, according to the letter of the will, their contingent interest in the proceeds of this land; but, of course, as he would be dead before this interest could vest, if it ever vested, she did not expect him, but his successor, to receive the proceeds of the land from the son's trustee in case the executory devise took effect. Can it be surmised with any degree of probability that a mother, who could trust her son, not only to take without restriction slaves and other personality under her will, but to represent her other children in a fiduciary capacity, intended not to trust him to...