Plant v. Plant
| Decision Date | 10 May 1905 |
| Parties | PLANT et al. v. PLANT et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
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.
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.
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. 288), 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 children 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 wife, and children issue of their marriage," included, as beneficiaries of the trust, only the wife and such of her children of the marriage with the trustee as were in life at the time of the execution and delivery of the deed. In Loyless v. Blackshear, 43 Ga. 327, it was held that where a deed conveyed lands to a trustee for a married woman and her children in fee simple, she and her children then in life took an estate as joint tenants, or, under our law, as tenants in common. In Wood v. McGuire, 15 Ga. 202, it was held that a devise to "A.'s children, their heirs and assigns forever," vested the title in those in esse at the death of the testator. In Baird v. Brookin, 86 Ga. 709, 12 S.E. 981, 12 L.R.A. 157, it was held that, where land was conveyed to a trustee for a woman and her children (she having none at that time), children born subsequently to the execution of the deed took no interest thereunder. See, also, Gillespie v. Schuman, 62 Ga. 252; Estill v. Beers, 82 Ga. 608, 9 S.E. 596; Lofton v. Murchison, 80 Ga. 391, 7 S.E. 322; Davis v. Hollingsworth, 113 Ga. 210, 38 S.E. 827, 84 Am.St.Rep. 233; Butler v. Ralston, 69 Ga. 485; Goodrich v. Pearce, 83 Ga. 781, 784, 10 S.E. 451; Wiley v. Smith, 3 Ga. 551.
2. Realizing that such have been the decisions of this court, counsel for plaintiffs in error asked leave to review them, which was granted. We see no reason, however, to reverse these decisions, so far as they affect the question involved in the present case, and they are affirmed.
3, 4. There can be no doubt that real estate can be conveyed in trust so as to let in after-born children as well as those in esse. Instances of such conveyances will be found in Pierce v. Brooks, 52 Ga. 425; Taylor v Brown, 112 Ga. 758, 38 S.E. 66; Brady v. Walters, 55 Ga. 25; Lee v. Tucker, 56 Ga. 9. But the fact that a conveyance can be drawn so as to let in after-born children does...
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