Rehearing
Denied Dec. 15, 1936.
Error
from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.
Suit by
Mrs. Dorothy Gatins Stout against Joseph F. Gatins, Sr., the
Massachusetts Mutual Life Insurance Company, and others. To
review an adverse judgment, plaintiff brought error and the
Massachusetts Mutual Life Insurance Company filed a
cross-bill of exceptions.
Judgment
affirmed, and the cross-bill of exceptions dismissed.
See
also, Jackson v. Massachusetts Mut. Life Ins. Co.,
189 S.E. 243.
Syllabus
by the Court.
1, 2.
Under a proper construction of the deed of trust, the
petitioner was entitled only to an equitable contingent
remainder thereunder, and the trustee was vested with legal
title to the entire trust estate.
3. A
remainderman whose estate is equitable and contingent cannot
during the existence of a precedent life estate, maintain a
suit to cancel a security deed executed by the life tenant
and the trustees, purporting to convey the entire trust
estate.
4. The
legal title being in the trustee, such trustee has the right
to bring an action setting aside such conveyances or
enjoining the threatened foreclosure thereof, on the ground
set out in the present petition; and an equitable contingent
remainderman, such as petitioner, can only act upon the
failure or refusal of the trustee to do so.
In case
No. 11333:
HUTCHESON
Justice.
Mrs.
Dorothy Gatins Stout, daughter of Benjamin K. Gatins and
granddaughter of Joseph F. Gatins, Sr., brought her petition
against Joseph F. Gatins, Sr., the Massachusetts Mutual Life
Insurance Company, and Howell E. Jackson, Benjamin K. Gatins,
and Mary G. Jackson as trustees under a deed executed by
Joseph F. Gatins, Sr. This deed is as follows:
'Georgia,
Fulton County: This indenture made and entered into this
the 14th day of February in the year of our Lord nineteen
hundred and twelve (1912), by and between Joseph F. Gatins,
of the State of New York and County of New York, of the
[183 Ga. 650] first part, and Trust Company of Georgia, as
trustee, a corporation of the State of Georgia, and County
of Fulton, party of the second part, witnesseth: that said
party of the first part, for and in consideration of the
sum of ten ($10.00) dollars cash in hand paid by said party
of the second part to the said party of the first part, at
and before the sealing and delivery of these presents, the
receipt whereof is hereby acknowledged, and for the trusts
hereby undertaken by said party of the second part,
hereinafter named, has granted, bargained, sold, and
conveyed, and by these presents does grant, bargain, sell,
and convey unto the said party of the second part, its
successors and assigns, as such trustee, subject, however,
to the life-estate of the party of the first part, which is
hereby retained therein' (describing certain real
estate known as the Georgian Terrace Hotel in Atlanta,
Ga.). 'The party of the first part hereby expressly
reserves to himself an estate for and during the time of
his natural life in and to said property and every part
thereof, and this conveyance is intended to embrace only
the remainder interest in and to said property after the
death of the party of the first part. To have and to hold
the said bargained premises, together with all and singular
the rights, members, and appurtenances thereof, to the same
being, belonging, or in any wise appertaining, subject to
the said life-estate of the said Joseph F. Gatins above
reserved, to the only proper use, benefit, and behoof of
the said party of the second part, its successors and
assigns in fee simple, forever,
[189 S.E. 250]
but only as trustee as herein specified and provided, and
upon the trusts hereinafter named.' Then follows the
warranty clause.
'This
conveyance of said property is made to said party of the
second part as trustee upon the following trusts, to wit:
(1) Said trustee shall in no wise interfere with the free
enjoyment of said property and its rents, issues and
profits, and of the life-estate herein reserved by the said
Joseph F. Gatins for and during his natural life. (2) The
party of the second part, after the termination of the said
life-estate, shall hold, manage, control, lease, rent, and
collect the incomes, issues, and profits from said
property, including all rents and notes for rents reserved
or taken by said party of the first part in his lifetime
carrying out all leases which said party of the first part
may have made which have not expired at the time of said
first party's death, and out of the proceeds [183 Ga.
651] thereof shall pay all taxes, assessments, public
charges, and do all necessary and proper repairs and
improvements, and shall keep up and maintain the said
property for and during the natural lives of the three (3)
children of the party of the first part, to wit: his sons,
Joseph F. Gatins, Jr., Benjamin K. Gatins, and his daughter
Mary L., and dispose of the net surplus arising therefrom,
as hereinafter provided. Said trustee is to have full
fpower and authority in and about the said matters and
shall have all the rights, powers, and authority over said
property, except as to the sale thereof, as if it owned the
same free of trusts, for and during the lives of each of
said three (3) children, and of the final survivor of them.
(3) After the death of the said party of the first part,
the said trustee is authorized, and in its discretion, to
pay over to each of said three (3) children an undivided
one-third (1/3) of the net income from said property,
during the life of such children, but shall not be
compelled to do so, nor shall such income, or any part
thereof, be subject to or liable for the debts,
obligations, or undertakings of any of said children, it
being the purpose of said party of the first part to leave
the matter entirely discretionary with the trustee; so that
the said income, or any part thereof, cannot be subject to
any debt or liability of any of said children. In case of
the death of either of said children, leaving children or
descendants of children, then the said trustee or its
successors will have the same right, and be under the same
duty as to such child or descendants of children, as
existed to said deceased child. Should any of said three
children die without leaving children or descendants of
children, then the said trustee is authorized, in its
discretion, to turn over one half (1/2) of the said net
income to each of the two survivors; should two of said
children die without leaving any children or descendants of
children, then said trustee is authorized, in its
discretion, to turn over the entire net income to the
survivor of said children of said party of the first part.
'(4)
In no event is the said trustee or its successors to be
compelled or required to turn over any part of the net
income to any child or descendants of children; nor shall
the same in any wise be liable for the debts of any or
either of them. (5) Said trustee shall keep a correct
account of the incomes, issues, and profits of said
property and of the expenses and upkeep thereof, and any
surplus income not turned over as hereinbefore provided
[183 Ga. 652] shall be invested and an account thereof
kept, and said investments shall at all times and in all
respects remain as surplus income and be subject to the
authority of said trustee or its successors, as though no
such investment had ever been made thereof. (6) Upon the
death of the survivor of my said three children, the said
trustee or its successors, will convey the said property in
fee simple, unconditionally, including any surplus income,
or the investment thereof held by it, to the children or
descendants of children of said three named children of
said party of the first part, one third to the children or
descendants of children of each, it being the intention of
this indenture that they take this remainder interest
hereby created in them, per stirpes. If any of said named
children, however, die without leaving at the time of his
or her death any children or descendants of children, or if
there be none living at the time of the death of said
survivor, then the part of such child so dying without
leaving such children or descendants of children, or if
there be none living at the time of the death of said
survivor, shall go and be conveyed by the trustee to the
children or descendants of children of the other two; and
if two of said named children should die without leaving
any children or descendants of children surviving, as
aforesaid, then the entire estate shall go to and be
conveyed by the trustee to the children or descendants of
children of the remaining named child who dies
[189 S.E. 251]
leaving children or descendants of children. (7) If all of
said named children should die without leaving any children
or descendants of children surviving as aforesaid, then the
said trustee or its successors will convey the said
property in fee simple to the next of kin of said party of
the first part, according to the laws of Georgia. (8) The
said trustee and its
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