Rehearing Denied March 3, 1934.
Syllabus by Editorial Staff.
Error from Superior Court, Monroe County; G. Ogden Persons, Judge.
Application by the Trust Company of Georgia, executor, for the probate of the will of Richard P. Brooks, to which G. W. Ivey and others filed a caveat. To review the judgment, the propounder brings error, and the caveators file a cross-bill of exceptions.
Affirmed on main bill of exceptions, and cross-bill dismissed.
Richard P. Brooks married Dosia Head. They lived together many years and died without a child. Mrs. Brooks acquired by gift from her father a separate estate. She executed a will July 3, 1924. Thereafter on July 16, 1924, Richard P. Brooks executed a will in which the eighth item was: "All the rest, remainder, and residue of my said estate, of whatever it may consist and wheresoever it may be located, I will, devise, and bequeath to my wife, Dosia Head Brooks. It is my desire and request that she select the Trust Company of Georgia of Atlanta, Fulton County, Georgia, as her representative to manage said estate for her use and benefit In the event my wife should predecease me, I will, devise, and bequeath the rest and residue of my estate to those purposes, uses, and trusts described and contained in item fifty-two of the will of my wife, dated July 3, 1924." On September 23, 1925, Mrs. Brooks executed a second will, in which item 52 was as follows:
"All the rest, residue, and remainder of my property of whatsoever character and wheresoever located, including my home place hereinbefore devised in item fifty one, after the death of my husband, or after he indicates his desire not to live there any longer, and including the remainder or reversion in the funds directed to be set aside to provide annuities for my faithful servants as herein-above provided, I will and devise to the Trustees of the Dosia Head Brooks Home for Gentlewomen.
"I will and direct that for said home there shall be thirteen trustees, nine of which shall be the following named persons: Mrs. John K. Ottley, Atlanta, Georgia, Mrs. T. T. Stephens, Atlanta, Georgia, Mrs. Wm. B. Beckham, Atlanta, Georgia, Mrs. Walter Grace, Ma-eon, Georgia, Miss Mamie Pinkard, Forsyth, Georgia, Mrs. E. D. Rudisill, Forsyth, Georgia, Mrs. T. R. Talmadge, Forsyth, Georgia, Mrs. T. E. Fletcher, Cordele, Georgia, Mrs. Charles Hardin, Forsyth, Georgia, which nine persons shall, so soon as it becomes possible to begin the actual operation of the Dosia Head Brooks Home, hold a meeting for temporary organization and at such meeting themselves select four additional trustees, one of such trustees to be chosen from each of the following named organizations: Georgia Federation of Women's Clubs, Georgia Daughters of the American Revolution, Georgia Division of the United Daughters of the Confederacy and Georgia Parent Teachers Association, such four additional trustees to have the same rights, powers and privileges as the nine trustees hereinabove specifically named, and it is understood that when the word 'trustee' is mentioned hereafter in this will, unless the context or wording specifically otherwise require, the board of thirteen trustees is referred to.
"And I will and direct that upon the death, resignation or removal from the State of Georgia of any trustee now or hereafter serving in such capacity for the Dosia Head Brooks Home the vacancy so caused shall be filled by the remaining trustees, they to name such persons as to them seem best, irrespective of affiliation with any of the organizations above named.
"I will and direct said trustees to use all property money or funds which may under this will come into their custody or control for the maintenance, erection and equipment of a home for gentlewomen known as the 'Dosia Head Brooks Home for Gentlewomen, ' and I hereby give and grant unto said trustees and their successors in office full and complete power and authority to use the money, property or funds herein devised in such manner as in their absolute discretion may be expedient to carry into effect this item of my will, whether such property be used for the purpose of erecting buildings or making improvements on the land or be set aside to provide an income for the institution. I will and direct that whenever in the administra
tion of this trust it becomes necessary to invest in any of the property or funds composing it such investment shall be made in good interest or dividend bearing securities, to be selected by the trustees upon the advice and counsel of whoever at that time may be President of the Trust Company of Georgia or its successors.
"And I hereby give and grant unto the said trustees, full and complete power from time to time as they may think necessary and deem best to sell any property real or personal at the time belonging to said trust estate, either at public or private sale and at such prices and upon such terms as they think best, without previously procuring any order of court authorizing them so to do. And I further give and grant unto said trustees, with the advice and counsel of the President of Trust Company of Georgia, or its successors as aforesaid, full and complete power and authority to invest the proceeds of any sale which may be made by it or funds derived from other sources in any other property either real or personal, as they may think best.
"Provided, always, that I will and direct that the tract of land upon which my home now stands and twenty-five (25) acres of land immediately contiguous thereto and extending out to the public road in front thereof, shall not be sold by said trustees, but any other part of my said one hundred and twenty-five (125) acre Home farm may be sold by said trustees under the provisions hereinabove named.
"And I further will and direct said thirteen (13) trustees to erect in suitable and conspicuous places tablets to my late father, William H. Head, and to the original nine (9) trustees herein named, the tablet to my father shall read as follows:
" 'This tablet is erected to the memory of William H. Head, 1830-1887. a public benefactor and a friend of humanity. He gave this home to his daughter, Dosia Head Brooks, on the occasion of her marriage.'
"The tablet to the nine original trustees shall have upon it the following words:
" 'This tablet is erected to the nine original trustees: Mrs. John K. Ottley, Atlanta, Georgia, Mrs. T. T. Stephens, Atlanta, Georgia, Mrs. Wm. E. Beckham, Atlanta, Georgia, Mrs. Walter Grace, Macon, Georgia, Miss Mamie Pinkard, Forsyth, Georgia, Mrs. E. D. Rudisill, Forsyth, Georgia, Mrs. T. R. Talmadge, Forsyth, Georgia, Mrs. T. E. Fletcher, Cordele, Georgia, Mrs. Charles Hardin, Forsyth, Georgia, under the last will and testament of Mrs. Dosia Head Brooks, the donor.'"
To item 52 were added codicils as follows: April 10, 1028: "I will and bequeath to the Dosia Head Brooks Home for Gentlewomen my insurance. Until the organization of said institution such insurance shall be retained by my executors and placed at interest, the interest to be accumulated and added to the corpus, and both the corpus and accumulations upon the organization of that institution. * * * I hereby amend and revise next to the last paragraph of item fifty-two of my last will and testament; it provides for a tablet to be placed in the Dosia Head Brooks Home for Gentlewomen in memory of my father, and I will and direct that said tablet shall be erected to the memory of both my father as provided for in my will, and my mother, Nancy Johnson Head." October 16, 1929: "Inasmuch as Mrs. T. R. Talmadge and Mrs. Charles Hardin, named as trustees in item fifty-two of my will, have both died, I desire that Mrs. Walter Bramblett and Mrs. Hugh Hardin, both of Forsyth, Georgia, shall be substituted as trustees in lieu of said decedents; the names of successor trustees to be likewise substituted on the tablet on which nine (9) original trustees are provided for in the last paragraph of item fifty-two. * * * I will and direct that my executors, and trustees of the Dosia Head Brooks Home for Gentlewomen shall have complete power and authority to retain in the same form of investment any property of which I may die possessed, or which may be given to them for the purposes of said trust. The trustees of said home are hereby authorized and empowered to accept any gifts, devises, bequests, or become beneficiary under any policies of insurance for the purposes of said home. Neither my executors or trustees shall be required to make any returns to any court, nor to file or secure any inventories or appraisals of my estate or any trust estate."
On January 7, 1930, Richard P. Brooks executed a codicil to his will in which item three was in part as follows: "And in the event my said wife, her executor, administrator, personal representative, or trustee under her will desires to use the said farm and house in connection with a home for gentlewomen as referred to in her or my will, then I direct that upon my wife, her executor, administrator, personal representative, or trustee under her will paying or tendering to my said nephew the sum of $8500.00 (eight thousand five hundred dollars) then all right, title and interest of the said Ivey [to whom the
farm had been devised in fee by the original will] in said Tvey Place' shall cease, and complete title shall vest in the person or fiduciary making such tender, the property, however to be used for the said Home for Gentlewomen."
Mrs. Brooks died on September 13, 1931, and her will was admitted to probate in common form. Bight days after the death of Mrs. Brooks, Richard P. Brooks on September 21, 1931, executed a second codicil to his will in which item 1 was as follows: "I revoke all disposition of the residue of my estate made in either my will or codicil, and I give the entire residue of my...
