Turner v. Barber

• Decision Date: 13 October 1908
• Citation: Turner v. Barber, 131 Ga. 444, 62 S.E. 587 (Ga. 1908)
• Parties: TURNER et al. v. BARBER et al.
• Court: Georgia Supreme Court

62 S.E. 587

131 Ga. 444

TURNER et al. v. BARBER et al.

Supreme Court of Georgia

October 13, 1908

Syllabus by the Court.

A deed to one as trustee for "the heirs of his body," he having three children, all of whom were minors, created a trust estate for such children.

[Ed Note.-For cases in point, see Cent. Dig. vol. 47, Trusts, § 167.]

A trust estate may be created for minors, and the legal title will not merge into the equitable interest during their minority so as to vest in them, although the deed does not in terms provide for any duties to be discharged by the trustee.

Since the passage of Acts 1876, p. 103 (Civ. Code 1895, § 4987), an order granted at chambers, authorizing a trustee for minors to sell the trust property, was not binding on them, where they were not served, although a guardian ad litem was appointed for them; and a deed made by the trustee in pursuance of such an order did not convey a valid title.

The general rule that one must be the owner of property in order to remove a cloud from the title cannot be applied so as to defeat a proceeding by minor beneficiaries of a trust to cancel a deed executed by their trustee without lawful authority. The grantee in such a deed cannot retain it, and claim under it, and yet defeat an effort to cancel it by setting up an outstanding title in a third person.

The evidence was sufficient to authorize the verdict, and none of the rulings of which complaint was made were such as to require a new trial.

The rejection of a proposed amendment to an answer of a defendant does not furnish a proper ground of a motion for a new trial. To such a ruling a bill of exceptions pendente lite may be filed, and error assigned thereon when the case is ultimately brought to this court by bill of exceptions, or if the case is brought to this court by bill of exceptions to a final judgment, or to a judgment which would have been final if rendered as the complaining party contends it should have been; and if such bill of exceptions is tendered within the time limited by law after the ruling on the rejection of the amendment the plaintiff in error may include in such main bill of exceptions an exception to such ruling and an assignment of error thereon.

Error from Superior Court, Telfair County; J. H. Martin, Judge.

Action by Eva A. Barber and others against Julia A. Turner and another. Judgment for plaintiffs, and defendants bring error. Affirmed.

De Lacy & Bishop and D. M. Roberts & Son, for plaintiffs in error.

Graham & Graham, for defendants in error.

LUMPKIN J.

Eva A Barber and others brought an equitable action against Mrs Julia A. Turner and T. H. Barber for the purpose of canceling a deed executed by the latter, as their trustee, to the former, and obtaining an injunction against interference with their possession. On January 13, 1894, the grandmother of the plaintiffs executed to their father, T. H. Barber, a deed to the land in dispute, "in trust for the heirs of his body." At that time T. H. Barber had three children living, all of whom were minors. In 1903 he applied to the judge of the superior court, alleging that by the deed the land had been conveyed to him in trust for the heirs of his body; that he then had three children living, who at the date of the filing of the petition were respectively 15, 12, and 10 years of age, and that three other children were born to him after the making of such trust deed; "that by a decree lately rendered in the United States court sitting at Macon, Ga., in a proceeding to which the said J. F. Barber [the grandmother] was a party, the title to such land was adjudged and decreed to be in Norman W. Dodge. Your petitioner further shows that it is desirable and necessary to sell and convey said lot of land, and that a suitable purchaser has been found for the same, but that, in order to protect said purchaser against any claim that might hereafter be set up by his heirs against said purchaser for said lot, an order is necessary, your honor, authorizing your petitioner to sell and convey the same." It was further alleged that an agreement had been made between the petitioner and Dodge, whereby the latter agreed "to make a quitclaim deed as to his interest in said lot, upon the payment to him of the balance of the purchase money due on said lot, when the order herein sought shall have been granted, and the deed from the petitioners to said purchaser shall have been executed and delivered in pursuance of said order." It was prayed that an order be granted authorizing and empowering the trustee to sell and convey the land and to execute a deed therefor. No service was made upon the minors, but a guardian ad litem was appointed. An order was granted at chambers, on March 5, 1903, by which the trustee was authorized to sell and convey, and to execute a deed to, the property described in said petition. The defendant, Mrs. Turner, set up various reasons why no decree of cancellation or injunction should be granted. Upon the trial the jury found in favor of the plaintiffs a verdict which is more fully stated below. A motion was made for a new trial, which was overruled, and Mrs. Turner excepted.

1. The first question which arises is as to the estate which was created by the deed from the grandmother to the father of the plaintiffs. It conveyed the land to the latter "as trustee for the heirs of his body." He then had the three living children, all of whom were, and still are, minors. The legal effect of the conveyance was to create a trust estate in Barber for the use of his children then living. Vinson v. Vinson, 33 Ga. 454; Tharp v. Yarbrough, 79 Ga. 382, 4 S.E. 915, 11 Am.St.Rep. 439; Hollis v. Lawton, 107 Ga. 102, 32 S.E. 846, 73 Am.St.Rep. 114.

2. A trust estate may be created for the benefit of minors. Civ. Code 1895, § 3149. The fact that the deed does not provide for any specific duties to be discharged or acts to be done by the trustee is not sufficient to cause the legal title to pass at once to minor beneficiaries. In an executed trust for the benefit of a person capable of taking and managing property in his own right, the legal title is merged immediately into the equitable interest. Civ. Code 1895, § 3157. But minor beneficiaries under a trust deed are not sui juris and capable of taking and managing property in their own right. Askew v. Patterson, 53 Ga. 209; Knorr v. Raymond, 73 Ga. 749 (11d); Bolles v. Munnerlyn, 83 Ga. 727-734, 10 S.E. 365. This is different from the question with which courts of equity have sometimes dealt as to allowing the sole beneficiary of trust property to have possession of it, as in Wade v. Powell, 20 Ga. 645.

3. Prior to Acts 1876, p. 103 (Civ. Code 1895, § 4987), it was held that service on minors personally was not required, upon an application to sell property held in trust for...