The City Council Of Augusta v. Walton

• Decision Date: 31 October 1886
• Citation: The City Council Of Augusta v. Walton, 1 S.E. 214, 77 Ga. 517 (Ga. 1886)
• Parties: The City Council of Augusta et al. vs. Walton, executor, et al.
• Court: Georgia Supreme Court

77 Ga. 517

The City Council of Augusta et al. vs. Walton, executor, et al.

Supreme Court of the State of Georgia

OCTOBER TERM, 1886.

[COPYRIGHT MATERIAL OMITTED.]

Wills. Trusts and Trustees. Charitable Trusts. County-Matters. Practice in Superior Court. Jurisdiction. Municipal Corporations. Before Judge Roney. Richmond Superior Court. April Term, 1886.

Reported in the decision.

J. S. & W. T. Davidson; C. H. Cohen; S. F. Webb, for plaintiffs in error.

Frank H. Miller; J. B. Cumming; Bryan Cumming, for defendants.

Hall, Justice.

Richard Tubman, late of Richmond county, died testate in the month of November, 1836, leaving his wife, Mrs. Emily H. Tubman, his sole executrix, who, having proved his will and qualified as such executrix, took letters testamentary from the inferior court, sitting as a court of ordinary for said county. The item of his will which creates the trust, the subject of this controversy, is as follows:

"Eighth. I give and devise to my kind, good and affectionate wife, Emily H. Tubman, the entire balance of my estate, of whatever kind or thing it may consist of. Now, in consideration of the unlimited confidence that I have in the discretion of my good wife, Emily H. Tubman, I do hereby constitute and appoint her my solo executrix of this my will, with the full hope and belief that she will use every means in her power to carry every part of this my will into complete effect. I therefore desire that she, immediately after my decease, apply to the legislature of this State to pass a law (if they, in their wisdom, should deem it expedient or politic) to enable her to email-cipate and make free in this State all the negroes I may die possessed of, except Anna and all her children, Charlotte and all her children, and Fanny and all her children. I therefore set apart, out of that part of my estate heretofore given to my wife, ten thousand dollars, five thousand of which sum I request my executrix to present to the University of the State of Georgia, or to the trustees thereof, provided, however, the legislature do pass the above described law enabling her to manumit my negroes as aforesaid; if not, then the whole of the ten thousand dollars to be applied to the transportation of the said negroes to such part of the United States as my executrix may deem the laws best calculated to secure to them the rights and immunities of free persons; the balance then, if any is left, shall be divided amongst them in equal shares; but if the legislature should pass the above described law, then the other five thousand dollars shall be divided among them in equal shares. And furthermore, I request that my executrix distribute amongst the poor of the county of Richmond two thousand dollars. And that all the real estate that I may die possessed of in the city of Augusta, after the death of my wife, be and is hereby given to the trustees of the Richmond County Academy, and their successors, the annual product to be by them appropriated to the erection of a poor-house in said county, and for the support of its inhabitants forever. Now, for the purpose of enabling my executrix to carry into full and complete effect every part of this my last will and testament according to my desires herein expressed, I do hereby authorize my executrix to make all sales and conveyances that may be necessary for the above mentioned purposes."

Mrs. Tubman, without having fully discharged the trusts of this will, and without having obtained letters dismissory as executrix thereof, died testate on the 9th day of June, 18S5, leaving John M. Walton her executor; and having qualified as such, he thereby became the executor of Richard Tubman's will. The persons constituting the board of trustees of Richmond County Academy, acting in their corporate capacity, renounced this trust in the year 1838, and notified the judge of the superior court of Richmond county of their renunciation, and prayed the appointment of another trustee to act in their stead; and the judge, at chambers, but (so far as appears) without any notification to Mrs. Tubman or any other person having an interest under the will of Richard Tubman, on the eleventh day of April, 1838, appointed the City Council of Augustaas the successor in the trust of the " Trustees of Richmond County Academy." The City Council of Augusta, though it accepted the appointment, never took possession of the trust property, nor interfered in any manner in the administration of the trust, except that in the year 1844, they executed a lease in perpetuity to a portion of the real estate embraced in this item of the will to the executors of one Samuel Hale, to whom Mrs. Tubman, in her lifetime, had previously sold and conveyed her life estate in the premises. Upon the death of Mrs. Tubman, the trustees of Richmond County Academy rescinded the resolution of their predecessors renouncing the trust, and insist upon their right to execute it, alleging, as the ground of their action, that the trusts did not devolve upon them until the termination of Mrs. Tubman\'s life estate. Both they and the city council of Augusta made a demand upon Walton, the executor, for the property belonging to the trust, who thereupon filed his bill, calling upon them to interplead, and praying the direction of the court touching the matter, and for other appropriate relief. Pending this bill of interpleader, the Hon. William F. Eve, as judge of the city court of Richmond county and ex officio commissioner of roads and revenues of said county, intervened and claimed, in his official capacity, the right to administer this trust, and prayed his appointment as trustee on the ground that, under the law creating him commissioner, he was charged with the duty of providing for the poor of the county, and was the only proper custodian of funds belonging to them, or which had been donated and set apart for their support. When the case came on to be heard, upon the bill, answers and proofs, the chancellor rejected the claims of each of the other claimants to the trust, and confirmed the appointment made by the will of Richard Tubman of the "Trustees of Richmond County Academy, " decreeing,

1. " That John M. "Walton, as executor of Richard Tubman, who is now in the possession of the realty set forth in the bill, is ordered, as such executor, to convey, pursuant to the terms of the will of histestator, all the real estate in the city of Augusta possessed by Richard Tubman at the time of his death, November, 1830, and fully described in the bill, to the trustees of the Academy of Richmond county, who was appointed by the testator, and which appointment is now concurred in, ratified and confirmed by this court. That the said complainant is also ordered and directed to transfer to the said trustees all the income received by him as rental, or from the use and occupation of said realty from the death of Emily H. Tubman, June 9, 1885, save and except the expenses incurred in repairs upon the realty, taxes, insurance, his commissions on income received, his counsel fee of five hundred dollars, and the cost of this proceeeding.

2. That the trustees of the Academy of Richmond county and their successors are hereby ordered and directed to carry into effect the provisions of said will, and to account with and receipt to the said complainant for the real estate described in the bill, and the income received by him since the death of Emily H. Tubman."

To this decree each of the defendants, the City Council of Augusta, and Judge Eve, as commissioner of roads and revenues of Richmond county, excepted, and each brought the case to this court by separate bills of exceptions and writs of error.

1. The interposition of the county commissioner and his offer to assume and execute the trust was purely vicarious, founded upon no claim of right in law or fact whatever. It is...