Vernoy v. Robinson , 133 Ga. 653 ( 1909 )

Holden, J.

(After stating the facts.)

1. One of the contentions of the defendant in error was that the trust created by the deed was a personal trust; and that while the wife had a right to require Smalley to sell the property, Smalley had a discretion in fixing the price of the property and other terms of sale. The plaintiff in error contends that the trust was one in which the trustee, Smalley, had no discretion. We do not think that the trust in this case was one in which the trustee had any discretion, but the only power given him in reference to any sale was to execute any conveyance of the property whenever and to whomsoever the wife required, and at such price and terms as she named under her hand and seal in a writing witnessed by two witnesses. The power did not cease at the death of the creator of it. The power is not unilateral, but is one of express covenant, and, moreover, is one coupled with an interest. In determining whether or not the trust was a personal one, the intention of the grantor must be gathered from all of the provisions of the instrument, and not simply from a portion thereof. In reading the entire instrument, it is manifest that the widest sort of discretion was intended to be given to the wife in regard to the property conveyed. The deed recited a nominal consideration of $5 paid by Smalley, but the real consideration moving the grantor was “the natural love and affection which he, the said George Eobinson, has and bears to his wife, Martha A. Eobinson.” In one portion of the deed it is stated that the property is conveyed to Smalley “for the sole and separate use of my said wife, the said Martha Ann. Bobinson, for her natural life.” In another portion of the deed it is stated that the property is conveyed “for the sole and separate use of the said Martha Ann Bobinson.” It was further provided that the wife “shall, upon the marriage of any of said children, have the right to advance any such child or children as much of the property hereby conveyed, or the proceeds, as in her discretion she may think proper.” The deed also provides that her children by her present or any future husband “shall be supported, clothed, and educated out of the issues, profits, and uses of the said property in the discretion of the said Martha Ann Bobinson..” The impression made on any one reading the above and the next-quoted provision in the deed is that the grantor had great confidence in the discretion of his wife and intended that a broad power over the property be given her. No discretion whatever is expressly given to the trustee, and the only power expressly given him is to execute conveyances for the purposes stated in the deed. This power was given in the following clause: “It is also further provided, covenanted, and agreed by and between the said George Bobinson and the said Meyron M. Smalley, trustee, that should the said Martha Ann Bobinson at any time require under hand and seal, by writing only executed by her in the presence of two witnesses, that any part-or all of the above-named property shall be sold or exchanged for other property, or mortgaged for the purpose of raising money for her use, that the said Meyron M. Smalley as trustee shall execute all proper conveyance or conveyances for the purpose aforesaid.” The “purpose” for which he was compelled to execute conveyances was to meet the requirements of the wife in regard to the sale, exchange, or encumbering of the property. Nothing is said about the trustee having any right to sell, exchange, or mortgage the property, except that he “shall execute all proper conveyance or conveyances for the purpose aforesaid.” No discretion is given him in reference to the execution of such conveyances, but the deed provides, upon the conditions therein named, that he shall execute all proper conveyance or conveyances for the purpose aforesaid. The purpose for which these conveyances should be executed was to effect the sale or exchange of the property, or an incumbrance thereon in the form of a mortgage, that might be required by the wife in writing under seal only executed by her in the presence of two witnesses. The purchase-money arising from any sale was intended to go to the wife, to be used as she saw fit; and it was intended that any sale of the property that was made in accordance with the provisions of the deed should convey the fee therein. If the property was exchanged for other property, it was evidently the intention that the fee should be conveyed; and we see no reason to infer a different intention if the property was sold instead of exchanged for other property. There was no provision whatever in the deed for the reinvestment of any of the proceeds of sale; and it is not proper to infer, in view of all of the provisions of the deed, that the grantor intended that the wife should only have a life-estate in such purchase-money. The only provision in the deed as to what is to become of the property at the death of the life-tenant is as follows: “all the property, as well what is hereby conveyed as what may be exchanged for as aforesaid, will go to such child or children as she may leave surviving her at herrdeath, to be equally divided amongst them.” Nothing whatever is said in this clause, or in any other provision of the deed, about the proceeds of the sale of any of the property going to any child or children at the death of the wife. The only property which it is provided will go to any child or children at the death of the wife is the property conveyed and the property which may be received in exchange for such property. The only mention in the deed as to the disposition of the proceeds of any sale is in the clause providing that the wife shall “upon the marriage of any of the said children, have the right to advance to such child or children as much of the property hereby conveyed, or the proceeds, as in her discretion she may think proper.” Any money arising from a loan secured by a mortgage was to be “for her use,” and, under the authority of the deed, she had the power to have the property encumbered by mortgage to its full value, if able to do so. It would not seem that the grantor intended that the proceeds of any sale should be for any purpose other than that which was provided for in case it was mortgaged, that is, for her use. The trustee had no right to limit the amount she could borrow and have secured by mortgage on the property. The fact that the proceeds of the sale of any of the property would go absolutely to the wife to do with as she pleased would be further evidence of the intention of the grantor that the wife only should have discretion as to the price to be paid for the property, to whom it should be sold, and other terms of sale. We think the intention of the grantor was that the wife should have the right to obtain money for her use absolutely, by having the property either mortgaged or sold, and that it was a matter in her discretion as to how much money was to be borrowed on the security of a mortgage; and the purchase-price and other terms of sale were to be fixed by her, if the property was sold. Under all of the provisions of the deed, we conclude that the intention of the grantor was to give the trustee, Smalley, no discretion in reference to any sale, but that the only duty he had to perform in regard to any sale of the property was to execute a conveyance thereto, convejdng the fee upon the requirement of the wife by writing under her hand and seal, executed in the presence of two witnesses, and that in requiring a sale she had a right to require it to be made whenever and to whomsoever she directed and upon such price and terms as she might dictate. He became the mere conduit through which the title was to pass at the conmmand of the wife. Under the deed it was the right of the wife to command, and he had no duty but to obey. The powers given Smalley, the trustee named in the deed, were not personal to him, but were powers incident to the office of trustee, and therefore were such as might be executed by his successor. See Luquire v. Lee, 121 Ga. 624, 628-631 (49 S. E. 834); Freeman v. Prendergast, 94 Ga. 639 (21 S. E. 837); Hill on Trustees, §485.

2. One ,of the questions to be determined is what estate the trustee took under the deed. A proper construction of the deed is that it only conveyed to the trustee the legal title for the life of the wife, and that no title to the remainder interest passed to the trustee. The deed provides for nothing whatever to be done by Smalley after the. death of the wife. The property is conveyed to him “as trustee for the sole and separate use of the wife for her natural life.” It is provided that any property received in exchange for the property conveyed shall be conveyed to Smalley “in trust for the said Martha Ann Bobinson for her sole and separate • use during her natural life, and at her death all of the property, as well what is hereby conveyed as what may be exchanged for, as aforesaid, will go to such child or' children as she may leave surviving her at her death, to be equally divided amongst them.” Under these provisions, Smalley took the legal title to the property during the life of the wife only. The deed simply provides what shall become of the property at the death of the wife, and, in making snch provision, declares “at her death all the property . . will go” as therein provided; and this contemplates no action whatever on the part of the trustee, nor does any duty devolve on him with reference to the property after the death of the wife. It is a rule of law that a trustee takes an estate as large and extended as the necessities of the trust require, and no more. Civil Code, §3191. Outside of the fact that the property conveyed by the deed and property which might be received in exchange therefor should go to the children at the death of the wife, there is no provision in the deed in regard to the children receiving any benefits from the property, except such as might be received in advances made them and support and education given thein in the discretion of the wife only. The trustee had no duty whatever under the deed to perform with reference to any person who was to take in remainder. The trustee took no title to the estate in remainder, but only took title to the property during the life of the wife of the grantor. The remainder was a legal and not an equitable estate. Luquire v. Lee, supra; Smith v. McWhorter, 123 Ga. 287 (51 S. E. 474, 107 Am. St. R. 86); Fleming v. Hughes, 99 Ga. 444 (27 S. E. 791); Baxter v. Wolfe, 93 Ga. 334 (20 S. E. 325); Brantley v. Porter, 111 Ga. 886 (36 S. E. 970); Allen v. Hughes, 106 Ga. 775 (32 S. E. 927); Overstreet v. Sullivan, 113 Ga. 89 (39 S. E. 431). The fact that the trustee had the power to convey the property for the purpose of selling, exchanging, or encumbering it did not itself give him the title to the fee in remainder. See, in this connection, Coleman v. Cabaniss, 121 Ga. 281 (48 S. E. 927); Luquire v. Lee, supra; Heath v. Miller, 117 Ga. 857 (44 S. E. 13).

3. The defendant in error contends that the appointment of the wife as trustee, upon the resignation of Smalley, by the judge at chambers was void by reason of the fact that the children were not parties to the proceedings. The petition of the defendant in error in this case states that the children who were in life at the time of the application of the wife to be made trustee were not parties, did not appear upon the hearing, and were not represented thereat. This appointmnt was made on the 3d of April, 1860. The act of February 20, 1854, provides: “That the judges of the superior courts of the several judicial districts of this State shall be and they are hereby respectively authorized at chambers, upon petition, or bill, and answer, where all parties in Interest are represented and consenting, and where there is no question of fact in dispute, to' make and pass all orders and decrees in relation to the appointment or removal of trustees, and the sale or division of trust or other property.” The appointment was made between the passage of this act and the adoption of the Code of 1863. As the trustee had the legal title only during the life of the wife, and in view of all of the provisions of the deed, we do not think that the children were such interested parties as made it necessary that they be represented at the hearing, in order to appoint a new trustee in the place of the one appointed in the deed. As previously stated, the trustee did not have the legal title to the remainder interest, and had no duty to perform under the deed with reference to the persons who might take in remainder. The only interest the children had in the propertjr during the life of the wife was so much thereof as the wife, in her discretion, might advance them upon marriage, and such interest as they might receive in being “supported, clothed, and educated out of the issues, profits, and uses of the said property, in the discretion of the said Martha Ann Eobinson.” With reference to such advancements and benefits the trustee had nothing whatever to do, and whether the children received any such advancements or benefits under the deed rested solely in the discretion of the wife. The children would take in remainder under such deed only such property as might not have been previously disposed of under the powers given under the deed, and with reference to such powers the trustee, as before stated, had no discretion. The children were not interested in such way as to make it necessary that they should be parties to any proceedings to remove the trustee named in the deed and appoint another in his place.

4. The petition in this suit avers that the order of sale by the chancellor “was void as to the estate in remainder in said deed; as said trustee was not trustee of the remainder interest, and the remaindermen were not parties to said proceeding and were not represented therein.” We deem it unnecessary to discuss the question as to whether or not the order for the sale -by the chancellor was or was not binding on the persons who were to take in remainder. The petition of Martha A. Eobinson, made while she was a widow, to be appointed trustee in the place of Smalle)», recited that a copy of the deed was attached thereto, and prayed that she be appointed “the trustee of said property in said deed mentioned, for her said children, in the place of the said Meyron M. Smalley, who has resigned said trusteeship, having removed from said county so that he could not attend to the same.” She also prayed for an order authorizing her to sell the property and use such part of the principal of the purchase-money “as may be necessary to support, clothe, and educate said children.” A writing signed by Smalley states: “I hereby resign the appointment of trustee, conferred on me by the deed of George Bobinson, a copy of which is hereto annexed, and certify that the facts stated in the annexed petition are true.” The judge, at chambers, on April 3, 1860, passed an order authorizing the sale as prayed for, and further ordered that the wife “be and is hereby appointed trustee for her children” of the property described, “and in lieu of said Meyron M. Smalley, who has resigned his trusteeship.” The petition recites, that “Martha Ann Bobinson as trustee made a deed reciting a consideration of $2,000, purporting to convey the property in dispute; “that the said deed does not purport to be made by virtue of the authority of the order aforesaid.” According to the allegations of the petition, Martha Ann Bobinson, as trustee, in her deed undertook to convey the fee to the property. The deed does not state that it was made by virtue of the order of the chancellor. While it is true she obtained an order of the chancellor to sell, if she had authority outside of this order, the deed would not be void because the order granting her power to sell was void. The appointment of the wife as trustee in the place of Smalley was valid at least to the extent of giving her all the powers, rights, and duties pertaining to such office in reference to executing the conveyances referred to in the deed. No personal trust was involved, and she succeeded to the power which he had of eonvejdng the property. A deed under seal would have been regular; and the petition, alleging that the widow or trustee executed a deed, does not negative the idea that the deed was under seal. The petition of the defendant in error bringing this suit recites that the deed which she made was recorded, which raises a presumption that it was executed in the presence of two witnesses. The wife being the one who had a right under the deed by such instrument to require a sale, determine the price and other terms thereof, and receive the purchase-money therefrom, and being the one who under the order of the court succeeded to the power of Smalley, who in the deed was charged with the duty of executing a conveyance, the deed of the wife conveyed a valid title to the property. The plaintiff in error, who holds by a regular chain of title under the grantee in such deed, has a good title to the property sued for, and the court committed error in overruling the demurrer to the petition.

Judgment reversed.

All the Justices concur.