Plant v. Plant

• Decision Date: 10 May 1905
• Parties: PLANT et al. v. PLANT et al.
• Court: Georgia Supreme Court

122 Ga. 763

50 S.E. 961

PLANT et al.

v.PLANT et al.

Supreme Court of Georgia.

May 10, 1905.

DEED—CONSTRUCTION—GRANTEES—CONVEY ANCE INTRUST—POWERS OF TRUSTEE.

1. Where a deed executed in 1891 conveyed to a man, as trustee for his wife and their children, certain real estate, only such children as were then in life took any interest under the conveyance, and after-born children took nothing thereunder.

2. Permission having been asked to review the former rulings of the court on this subject, upon consideration they are affirmed.

3. That real estate can be conveyed in trust in such terms as will operate to admit after-born children does not alter the general rule of construction where, as in this case, there is no such provision.

4. Where a deed was made and delivered in 1891, conveying to a husband, as trustee for his wife and their children, certain real estate, the fact that it provided that the grantee, "as trustee as aforesaid, " should have full power and authority during his lifetime to mortgage the property, and to use, control, and dispose of the rents, issues, and profits of the said property as he might see fit, without accountability to the cestuis que trust, or either of them, or to any successor in said trust, as to said rents, issues, and profits of said property, and further conferred upon him, as trustee, power to sell, mortgage, or incumber any of the property at his discretion, and to reinvest the proceeds in other property upon like uses and trusts, without the necessity of obtaining any order of court therefor, did not alter the rule of construction above announced, or operate to let in, as beneficiaries of the trust, children born after the execution of the deed, and before the death of the trustee.

(Syllabus by the Court.)

Error from Superior Court, Bibb County; Robt. Hodges, Judge.

Action by M. M. Plant and others, by their next friend, against M. R. Plant and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

On March 21, 1891, Myron Nussbaum executed a deed to Robert H. Plant, as trustee for his wife, Margaret R. Plant, and their children, the material parts of which were as follows: "Between Myron Nussbaum, of the county of Bibb, of the one part, and Robert H. Plant, as trustee of his wife, Margaret H. Plant, and their children, of the county of Bibb, of the other part, witnesseth, that the said Myron Nussbaum, for and in consideration of the sum of twenty-nine thousand dollars * * * hath granted, bargained, sold, aliened, conveyed and confirmed * * * unto the said Robert H. Plant, as trustee as aforesaid, his successors, heirs, and assigns, all that lot or parcel of land * * * in the county and State aforesaid, being parts of lots numbers 1 and 2 in square number 15, * * * provided always the said Robert H. Plant, as trustee as aforesaid, shall have full power and authority during his lifetime to mortgage said property, and to use, control, and dispose of the rents, issues, and profits of the said property as he may see fit, without accountability to the said cestuis que trusts, or either of them, or to any successor in said trust, as to said rents, issues, and profits of said property. The said Robert H. Plant, as trustee as aforesaid, shall have full power and authority to sell, mortgage, or encumber any or all of said property at his discretion, and the proceeds in his discretion to reinvest in other property to like uses and trusts, but in no case shall it be necessary to obtain any order or decree of any court for such sale, mortgage, or other encumbrance, and any sale of said property, or any part thereof, shall be in public or private, and upon such terms as the said trustee may think best. To have and to hold said bargained property with all and singular the rights, members, and appurtenances thereunto appertaining, to the only proper use, benefit, and behoof of him, the said Robert H. Plant, trustee as aforesaid, his successors, heirs, executors, administrators, and assigns in fee simple." At the time of the execution and delivery of the deed, Plant and his wife had several children, all of whom, except one, are still living. After the execution and delivery of the deed, three other children were born. The property is the mansion house and lot. Plant died, and the three last-mentioned children, by their next friend, filed an equitable petition against Margaret R. Plant and others. The sole question raised by this petition for determination here is whether or not, under the deed from Nuss-baum to Plant, as trustee, the three children born after its execution and delivery took any interest. The judge presiding in the superior court held that they took no interest, and directed a verdict accordingly. To this ruling plaintiffs excepted.

C. H. Hall, Jr., for plaintiffs in error.

A. L. Miller and Dessau, Harris & Harris, for defendants in error.

LUMPKIN, J. (after stating the above facts). 1. As far back as the decision in Wild's Case, 6 Coke's R. 17 (Ed. of Thomas & Fraser, vol. 3, p. 2S8), it was "resolved for good law" that if A. devised lands to B. and to his children or issues, B. having no issue at the time of the devise, an estate tail was created, "but otherwise where there was issue. In this state estates tail have been abolished, and it has frequently been held that a deed conveying lands to a person and his children passed title to him and the chil dren in esse when the deed was executed and delivered, and that after-born children took no interest thereunder. In Tharp v. Yarbrough, 79 Ga. 382, 4 S. E. 915, 11 Am. St. Rep. 439, it was held that a deed, the consideration of which was love and affection, from A., of the one part, to the heirs of B., of the other part, there being three children in life when the deed was executed, passed the title to those three children, and children of B. subsequently born took no interest under it. The word "heirs" was treated as the equivalent of "children" in that case. The fact that a conveyance may have been made to a trustee for a married woman and her children, instead of being made directly to them, did not vary this rule. In Hollis v. Lawton, 107 Ga. 102, 32 S. E. 846, 73 Am. St. Rep. 114, it was held that a conveyance of land by a deed to one as trustee of "his...