Wood v. Owen

• Decision Date: 13 January 1910
• Citation: 133 Ga. 751,66 S.E. 951
• Parties: WOOD et al. v. OWEN et al.
• Court: Georgia Supreme Court

133 Ga. 751

66 S.E. 951

WOOD et al.

v.OWEN et al.

Supreme Court of Georgia.

Jan. 13, 1910.

1. Wills (§ 689^*) — Construction — Estate Conveyed.

A will contained the following item: "1 give, bequeath, and devise to my beloved wife, Aminda N. Wood, all of my lands and tenements belonging to the same in any wise, and also all my stock, and also my wagons, buggy, and also my household and kitchen furniture, all without limitation or reserve, for her to do as she thinks best for herself and all of my lawful heirs; and also I make Archa M. Wood equal with the rest of my heirs." There was no other provision qualifying or explaining this item, nor did the evidence throw light upon it, further than to show that the testator owned 100 acres of land, on which his widow, who was feeble, lived, and from which she derived a support. Held, that she had authority to convey to one of the children of herself and the testator 20 acres of the land in fee, in consideration of an agreement that the grantee would stay with and care for the grantor during her life.

(a) The consideration expressed in the deed was natural love and affection; but the plaintiffs alleged and sought to show that the real consideration was such a promise as that stated above.

[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 1050, 1651; Dec. Dig. § 089.*]

2. Trial (§ 252*)—Refusal of Requests-Charges Not Based on Evidence.

There was no evidence showing that the grantor did not know the statement of the consideration in the deed, or had not sufficient opportunity for knowing it; and a request to charge, based on a contrary hypothesis, was properly refused.

[Ed. Note.—For other cases, see Trial, Cent. Dig. § 590; Dec. Dig. § 252.*]

3. Cancellation of Instruments (| 15*)— Deeds (§ 19*)—Failure to Render Services as Consideration for Deed.

If a deed conveying land in fee simple was made in consideration that the grantee agreed to remain with the grantor and wait on and care for her, and a year or so thereafter the grantee moved away and married, this alone would not render the deed void; but in the absence of fraud, or special facts, such as insolvency, the remedy would be by an action for breach of the contract. McCardle v. Kennedy. 92 Ga. 198. 17 S. E. 1001, 44 Am. St. Rep. 85; Lindsey v. Lind-gey, 02 Ga. 546; Kytle v. Kytle, 128 Ga. 387, 57' S. E. 748.

[Ed. Note.—For other cases, see Cancellation of Instruments, Cent. Dig. §§ 15, 21; Dec. Dig. § 15;* Deeds, Cent. Dig. §§ 38, 210; Dec. Dig. § 19.*]

4. Cancellation of Instruments (§ 47*)—Insolvency of Grantor—Failure to Render Services as Consideration.

When the evidence for the plaintiffs tended to show that at the time when or before the deed, which expressed on its face a consideration of love and affection, was executed, a parol promise of the grantee to stay with and care for the grantor, who was feeble, was made in 1896, and that the grantee left the place and married during the following year, and ceased to remain with or care for the grantor, but that the grantor never sought to cancel or rescind the conveyance before her death in 1905, and where in 1907 a person who was her administrator, and also that of the testator, and the other heirs of herself and the testator, sought to set aside the conveyance and recover the land, they were not entitled to recover, although they alleged insolvency of the grantee at that time, and one or two of them testified that she had nothing of which they knew, except her interest in the estate.

[Ed. Note.—For other cases,.see Cancellation of Instruments, Dec. Dig. § 4.7.*) (Syllabus by the Court.)

5. Trusts (§ 29*)—Precatory Trusts.

No particular words are necessary to create a precatory trust, and under the special provisions of Civ. Code 1895, § 3162, precatory or recommendatory words will create a trust, if they are sufficiently imperative to show that it is not left discretionary with the person to act or not, and if the subject-matter and objects of the trust are defined with sufficient certainty, and the mode in which the trust is to be executed specified.

TEd. Note.—For other cases, see Trusts, Dec. Dig. § 29.*]

Error from Superior Court, Paulding County; Price Edwards, Judge.

Action by W. B. Wood, administrator, and others, against S. O. Owen and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

J. S. James, for plaintiffs in error.

W. E.Spinks, for defendants in error.

LUMPKIN, J. The case before us furnishes a new illustration of the old statement that "no case upon a will has a brother, " for no will which has come under our observation bears a very striking family resemblance to this one, certainly not enough to cause them to have the appearance of testamentary doubles. We must look at this unique will in the light of its own terms. The plantation contained 100 acres. The widow conveyed 20 of them to one of her children. The others are dissatisfied. It does not require any particular formula to create a precatory trust. In one case, where there was a devise of a plantation to a son of the testator, and a bequest of a negro slave to the wife of the former, followed by the statement that "I also allow my son Henry to give her a support off of my plantation during her lifetime." This was sufficient to create a charge on the land for the support of the testator's wife. Hunter v. Stembridge, 12 Ga. 192. In Civ. Code 1895, § 3162, it is declared that "precatory or recommendatory words will create a trust, if they are sufficiently imperative to show that it is not left discretionary with the party to act or not, and if the subject-matter of the trust is defined with sufficient certainty, and if the object is also certainly defined, and the mode in which the trust is to be executed."

If it were held that a precatory trust was created, or a charge on the property in favor of the testator's heirs,...