Maxwell v. Hoppie

• Decision Date: 20 February 1883
• Citation: 70 Ga. 152
• Parties: MAXWELL v. HOPPIE et al.
• Court: Georgia Supreme Court

70 Ga. 152

MAXWELL v. HOPPIE et al.

Supreme Court of Georgia.

February 20, 1883

February Term, 1883.

[This case was brought forward from the last term under §4271 (a) of the Code.]

1. A grantor executed a deed whereby, in consideration of ten dollars and of the love he had toward his wife and children he conveyed to the wife certain real estate for and during her natural life, and after her death to go to the above named children, and such other children as she might then have living, by him, share and share alike, their heirs and assigns, etc. The habendum clause was to have and to hold to the wife for life and after her death to the children living at the time of her death, by the grantor; and in case of her death without leaving children, to revert to the grantor, his heirs and assigns. It then proceeded as follows: " With the power and right of the said James E. Butler to act as the trustee for his said wife and children, and as such trustee to manage and control said property, subject to the trust aforesaid, and to collect the rents, issues and profits accruing from the above described property, and to expend the same in the support and the maintenance and education of said wife and children, and should any surplus remain, to re-invest the same in such other property, subject to the above described trusts aud limitations, as he shall deem most for the interest of said trust estate, and with power and authority to the said Elizabeth C. Butler (the wife) to change said trusteeship and select another, upon application of the chancellor." The warranty was to the wife and children of the grantor:

Held, that such a deed created a trust, or charge in the nature of a trust, upon the life estate of the wife for the maintenance, support and education of the children.

( a. ) Under this deed the wife could not manage and control the property, but it was the duty of the husband as trustee to collect the rents, issues and profits, to expend the same for the maintenance and support of the wife and children and the education of the latter, and to invest the surplus, if any remained, in such property as he might deem most for the interest of the estate, upon the same trusts and limitations as those contained in the deed.

( b. ) The power to change the trustee with the approval of the chancellor does not affect the construction of the deed. Such power could have been exercised without any express reservation for that purpose.

2. If two clauses be utterly inconsistent, the former must prevail but the intentions of the parties from the whole instrument should, if possible, be ascertained and carried into effect. The doctrine of repugnant clauses is not favored.

( a. ) This case differs from that in 32 Ga. 588, and from the obiter dictum in 56 Ga. 170.

3. No ambiguity requiring explanation by parol was presented by this deed; and it would be improper to create an ambiguity by parol for the purpose of explaining it.

4. It follows from the above that the power and right of the trustee were not subservient to his wife's legal estate for life, nor were they personal and attended with no duty to the children.

Deeds. Trusts. Estates. Before H. K. MCCAY, Esq., Judge pro hac vice. Fulton County. At Chambers. June 6, 1882.

To the report contained in the decision it is only necessary to add in connection with the third division thereof, that the bill of exceptions states that " such portions of the affidavits as appear as exhibits to the bill and answer as were not considered by the judge on objection are enclosed in brackets." On turning to the record, no part of the affidavit appears to be so enclosed, but from the argument and briefs of counsel it may be gathered that the judge refused to consider evidence as to certain directions claimed to have been given to J. S. Smith, the father of Mrs. Butler, by J. E. Butler, to the effect that Smith should have the deed made to Mrs. Butler for life with remainder to her children; also evidence of declarations made by Butler after the deed was executed, stating its legal effect.

HOPKINS & GLENN; L. E. BLECKLEY, for plaintiff in error.

HOKE SMITH; A. C. KING, for defendants.

HALL Justice.

In order to settle a difficulty between himself and wife, and to induce her, after a separation brought about by his irregular habits, to return, and for the purpose of making provision for the maintenance and support of the family and the education of their children, James E. Butler, on the 29th day of September, 1869, executed and delivered a deed whereby, in consideration of ten dollars and of the love he bore to his said wife and their two children, Katie and Lizzie, he conveyed to the wife certain real estate for and during her natural life, and after her death to the above named children and such other children as she may then have living, by him (her present husband), share and share alike, their heirs and assigns, etc. This is the whole substance of the premises of the deed. The habendum is as follows:

" To have and to hold the above granted parcels of land and premises, together with all and singular the rights, members and appurtenances thereof, to the same in any manner being or belonging, to the said Elizabeth C. Butler for and during her natural life, and after her death to said above named children, and such other children as she may have living at the time of her death by her said present husband, share and share alike, and if she shall die leaving no children or child living at the time of her death by her present husband, then and in that event the said described property shall revert to the said James E. Butler, his heirs and assigns, with the power and right of the said James E. Butler, to act as the trustee for his said wife and children, and as much trustee to manage and control said property, subject to the trust aforesaid, and to collect the rents, issues and profits accruing from the above described property, and to expend the same in the support and the maintenance and education of his said wife and children, and should any surplus remain, to re-invest the same in such other property subject to the above described trust and limitations, as he shall deem most for the interest of said trust estate, and with power and authority to the said Elizabeth C. Butler to change said trusteeship and select another upon application to the chancellor."

Immediately succeeding is this warranty of title:

" And the said James E. Butler, for himself and his heirs and assigns and administrators, the said granted premises to his said wife and children, will warrant and forever defend the right and title thereof against themselves and all other persons by virtue of these presents."

After the execution of this deed, these parties had another child, a son, born to them. James E. Butler died leaving his wife and these three children, all of whom are minors, still in life, surviving him. The wife administered upon his estate, and has lately married Dr. George T. Maxwell. After this marriage, Katie left the house of her mother, and against the mother's consent married George E. Hoppie; upon this marriage, her mother refused to furnish her any support from the income derived from the property thus conveyed. James E. Butler managed the property under the provisions of the deed while he lived. Mrs. Hoppie, by her husband and next friend, filed this bill against Mrs. Maxwell, in which she alleged various acts of waste and mismanagement of the property, and that the conveyance in question created a trust estate during the life of Mrs. Maxwell for the benefit of herself and her children by her former husband, and at her death that the fee vested in the said children. She asked and obtained for herself, her minor sister and brother, who by subsequent amendment were with her made parties to the bill, an order for injunction restraining Mrs. Maxwell from interfering with or managing the property, and also the appointment of a receiver. To this decree Mrs. Maxwell excepted, and now prosecutes this writ of error to reverse it. She alleges that the judgment below was erroneous:

(1.) Because the deed in question created no trust estate at all, either in favor of herself or of the children; that it conveyed to her an unincumbered and unconditional estate for life, with remainder to such children by her former husband, James E. Butler, as should be living at her death.

(2.) That the power and right reserved by the deed to James E. Butler to manage and control the property, to collect, expend and invest the income, was subservient to her legal estate for life; that it was personal and discretionary; attended with no duty to the children, was not acquired by the deed, but existed " far more amply" before than afterwards; that he did not take the property from another, but had it himself, and with it all the right and power, and more too, than the conveyance specifies; and that the previously existing right and power was precisely the same, only much broader than such as the instrument had enumerated.

(3.) If there was a duty imposed upon him by the deed, attended with a right in the children, both the right and duty were inconsistent with the estate conveyed in the premises, and the rule that the subsequent clause was void, where the same deed contained repugnant clauses, prevailed.

These were the only questions insisted upon before us at the argument, and if the positions taken are well founded, they are decisive of the case. But, notwithstanding the difficulties raised by the earnest, ingenious and plausible argument of her eminent counsel, we are satisfied that neither one of these positions, however sound as abstract principles, can be made applicable to the facts and circumstances of this case.

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