Syllabus by the Court.
Where a
testator, by item 5 of his will, bequeathed to his son, R. S
Munford, in trust for the testator's daughter, L. M
Peeples, one half of his shares of the capital stock of a
certain mining company (the other half being bequeathed to
the son by another item absolutely), vesting the trustee with
full and complete control of said stocks, with the exclusive
right and authority to vote same at all stockholders'
meetings, and to sell the stock as in his judgment may be
best for the interest of all parties concerned, and where the
testator also provided, in a subsequent clause of item 5 of
the will, that the trustee shall pay to the daughter
"or to the heirs of her body, should she be dead, all
dividends that may accrue upon said shares of stock, and the
proceeds of any sale that he may make of same, to be hers or
theirs, as the case may be, absolutely. But should my said
daughter * * * die leaving no issue of her body, children, or
children of children, before the executing of the trust
herein created, then the stock herein bequeathed to my son *
* * as trustee, or the residue thereof should any have been
sold, shall be and become the property of the said [son]
absolutely." Held, that the daughter takes an
estate in fee, which is not cut down to a less estate by item
5 or any subsequent part of the will.
Where
an estate was bequeathed by a testator to a named trustee for
his daughter, as set out in headnote 1, and a petition was
filed by the daughter against the trustee, alleging that at
the time the testator executed his will she was over 21 years
of age, of sound mind, and had since that time remained of
sound mind and fully capable of receiving, owning
controlling, and enjoying property in her own right without
the intervention of a trustee, and also alleging malfeasance
and nonfeasance on the part of the trustee, and praying for
injunction, receiver, and that such devise be decleared to
convey the absolute fee to her, such petition was not subject
to demurrer on the ground that the trust was executory, and
not executed, and the court did not err (at a regular term of
court) in overruling the demurrer on that ground; and where,
on a hearing for temporary injunction, the evidence for the
plaintiff was sufficient to sustain the allegations of her
petition, the court did not err in granting a temporary
injunction.
Error
from Superior Court, Bartow County; M. C. Tarver, Judge.
Suit by
Mrs. L. M. Peeples and others against R. S. Munford and
others. Judgment overruling demurrer and continuing a
restraining order, and defendants bring error. Affirmed.
L. S.
Munford died, leaving his last will and testament, which was
admitted to probate in solemn form, the material portions of
which are as follows:
"Item 5. I hereby give, devise, and bequeath to my son,
Robert S. Munford, in trust for my daughter, Lewis Munford
Peeples, wife of O. T. Peeples, one-half (1/2) of my shares
of the capital stock of the Etowah Development Company, and
one-half (1/2) of my shares of the capital stock of the First
National Bank of Cartersville, Ga., hereby vesting him, the
said Robert S. Munford, with full and complete control of
said stocks with the exclusive right and authority to vote
same at all stockholders' meeting, and to sell the Etowah
stock as in his judgment may be best for the interests of all
parties concerned, but the bank
stock may be sold at the instance of the said Lewis Munford
Peeples, and upon her written request. Said trustee shall pay
to said Lewis Munford Peeples, or to the heirs of her body
should she be dead, all dividends that may accrue upon said
shares of stock, and the proceeds of any sale that he may
make of same, to be hers or theirs, as the case may be,
absolutely. But should my said daughter, Lewis Munford
Peeples, die leaving no issue of her body, children, or
children of deceased children, before the executing of the
trust herein created, then the stock herein bequeathed to my
son, Robert S. Munford, as trustee, or the residue thereof
should any have been sold, shall be and become the property
of the said Robert S. Munford, absolutely.
Item 6. I hereby give, devise, and bequeath to my daughter,
Lewis Munford Peeples, wife of O. T. Peeples, in trust, for
and during her natural life for the joint use and benefit of
herself and children, including the children she now has as
well as those that may hereafter be born to her, the
following real estate, to wit: (A) All of my lands lying on
and adjacent to Pettitt's creek in the fifth district of
the third section of Bartow county, Georgia, including the
following farms, to wit: That certain farm known as my old
home place, where I lived for many years; also the farm known
as the Old Bishop place, the same being sometimes known as
the old Rock House place and adjoining the home place
aforesaid; also, the farm known as the old Munford Mill
place. (B) Also, that certain farm lying on, or near,
Pettitt's creek in said county, formerly known as the J.
G. Lowery place; with all of the live stock, farming tools,
and machinery on each of said farms, for use in the operation
of such farms, to be treated as part and parcel of such farm
and to go with such farm to said devisees in the same way and
on the same limitations as the farm itself. (C) Also, that
certain storehouse and lot on the South side of Main St., in
the city of Cartersville, Ga., now occupied by J. W. Vaughan & Co. (D) Also, that certain storehouse and lot on the south
side of Main St., in Cartersville, Ga., now occupied by the
Bank of Cartersville. (E) Also, that certain house and lot on
the north side of Leake St., in Cartersville, Ga., now
occupied by J. C. Fink and adjoining on west the residence
lot of Capt. Bob Anderson. (F) Also, that certain town lot,
with the two frame buildings thereon, located on the
southwest corner of Bartow and Carter Sts. in the city of
Cartersville. Ga. It is my will and desire that on the death
of my said daughter, Lewis Munford Peeples, all of the real
estate mentioned in this item and devised and bequeathed to
her, in trust for herself and children during her natural
life, shall then vest in, and is hereby devised and
bequeathed in fee simple, to the children of my said daughter
who may survive her, and to the surviving child or children
of any deceased child or children who may have died before
their said mother; the child of such deceased child or
children to receive the share or interest which would have
been received by such deceased child or children. had such
deceased child or children have survived my said daughter;
the said Lewis Munford Peeples only having the right to use,
for the benefit of herself and children, the income arising
from the property devised in this item."
Item 9. In the event of the death of my daughter, Lewis
Munford d Peeples, leaving surviving her one or more children
under twenty-one years of age, or one or more grandchildren
who are children of a deceased child of my said daughter,
then and in either of such events I hereby appoint my son in
law, Oscar T. Peeples, as testamentary guardian of any and
all of such minor children or grandchildren, with authority
to take charge of and manage and control the property and
interests of such minor children or grandchildren of my said
daughter, given them under this will, during their minority;
but the appointment of said testamentary guardian is
conditioned upon his first giving a good and sufficient bond
in double the value of the property and effects to come into
his hands as such guardian, payable to the ordinary of Bartow
county, Georgia, signed as surety by some good and solvent
fidelity insurance company doing business in Georgia, in
compliance with the laws thereof, and conditioned for the
faithful discharge by the said Oscar T. Peeples of all the
duties of his office as such guardian; said bond, and the
surety thereon, to be approved by the ordinary of Bartow
county, Ga. On failure of my said son-in-law to accept said
guardianship, or to make and file in the office of the
ordinary of Bartow county, Ga., with his approval, the bond
required above, within four months after the death of my said
daughter, then and in that event his appointment as guardian
shall not take effect, and I hereby appoint my son, Robert S.
Munford, as testamentary guardian of the minor children and
(or) grandchildren, as aforesaid, of my daughter, and no bond
shall be required of him as such guardian.
Item 10. It is my express will and desire, and I hereby
positively direct, that none of the property bequeathed and
devised to my daughter, Lewis Munford Peeples, in trust for
herself and her children, during her natural life, shall at
any time for any cause or purpose, or by order of any court
upon any pretext, be sold by her for reinvestment or any
other purpose; but only the annual income may be disposed of
by her, and the same prohibition and restriction is hereby
placed on the power of the testamentary guardian of the minor
children and (or) grandchildren of my said daughter, should
any there be; the intention of this will and testament being,
that the property I have devised and bequeathed for the
benefit of my said daughter and her children. and the
children of her deceased children dying before her, shall
remain intact during her lifetime and during the term of said
guardianship, if any there should be. I positively forbid and
prohibit any encroachment whatever on the corpus of said
bequest and devise, until the trust herein and hereby created
is fully executed."
After
the testator's death, and the probate of his will, the
trustee named voted the shares of stock in the Etowah
Development...
