Gunby v. Alverson , 146 Ga. 536 ( 1917 )

Evans, P. J.

(After stating the foregoing facts.)

1. The record in this case presents several questions, but they all hinge on the construction of the deed from Gardner to Dill, trustee. After careful study of its multiform provisions, we have reached the conclusion that the trust therein created is projected over the entire fee. This being the decisive issue, we will proceed to state our reasons for the conclusion which we have reached.

The granting clause, to the “trustee for the said Lizzie Ida and Mary Ellen or their children,” and the final paragraph of the tenendum clause, “I herein again direct that said property, at the death of either of my said daughters, shall vest in and become an absolute fee-simple estate in their child or children, or the issue of their child or children; but if either or both of them should die without child or children, or the issue of such child or children living at the time of their death, then said property shall be subject to the limitations and restrictions hereinbefore set forth,” reflect the grantor’s conception of this contingency: One daughter might die leaving children, and the surviving daughter might die childless, at which time the children of the daughter first to die would be in life. In this contingency the grantor must have intended either that one half of the estate would absolutely vest as a fee in possession in the children of the deceased daughter, or the title to an estate in remainder would vest in the children of the deceased daughter as to such half, burdened with a life-estate in the surviving daughter, which half would be augmented by the other half of the estate on the death of the surviving daughter without issue, with contingent remainder to other children of the grantor upon the prior death of any children of the named daughters of the grantor without issue. We think the latter was the grantor’s intent as gathered from the full provisions of the deed. In order to fully protect this scheme, the granting clause to the trustee for the daughters or their children must have been used advisedly as projecting the trust over the whole estate. This view is strengthened by the recital in the beginning of this deed, that the grantor was “desirous of securing to his said daughters, Lizzie Ida Gardner and Mary Ellen Gardner, and their children by any future husbands, a maintenance, support, and education.” The deed contains no suggestion that the grantor intended to split the estate granted to the trustee, so as to confine it to the daughters. Moreover, the deed contains certain “directions” to the trustee, which must be construed as definitive of the trust estate. One of these directions refers to the sale of the corpus of the estate. The grantor directs and requires “that no part or portion of the corpus of the said estate shall -ever be sold until the life-estate is ended, for any purpose whatever, unless it shall become less profitable than ordinary investments, or my daughters should desire to change their residence to some other locality, or for some other like good and substantial reason; but if such reason should ever exist, the fund shall be reinvested, and before said sale shall be made I hereby direct that full and satisfactory reason shall be given and clear and sufficient proof be made to the chancellor granting said order, that such necessity exists and that the proceeds of the sale wdien made shall be reinvested in like property, or property as substantial in permanent value and as productive in its yield of profits.” The grantor’s reference to- a sale of the corpus under the restrictions he imposed must have beep intended to refer to the fee of the estate. It is a well-recognized fact that the uncertainty of life gives a life-estate a more or less speculative value. The ■precaution against an unwise change of investment so pointedly manifested by this grantor is strongly persuasive that he was striving to preserve the fee to his daughters and others beneficially interested in the grant. Except in the stated contingencies, he did not wish the property sold. Though this clause is chiefly restrictive, yet it contains an implied power to the trustee, upon clear proof to'the chancellor, and with his official consent, to sell the corpus when the same becomes less profitable than ordinary investments, or his daughters should desire to change their residence to some other locality, or for some other like good and substantial reason. It will be further observed that the grant is to the trustee “in trust for their [the daughters’]' sole and separate use, benefit, and behoof for and during their natural lives, and at their death or the death of either of my said daughters to be equally divided share and share alike among their children,” -etc. The phraseology of the granting and tenendum clauses of this deed does not contain technical words of conveyance to the children. Nor does any language in these clauses restrict the trust to the life-tenants, as was the ease in the devises under consideration in Bull v. Walker, 71 Ga. 195, Carswell v. Lovett, 80 Ga. 36 (4 S. E. 866), and McDonald v. McCall, 91 Ga. 304 (18 S. E. 157). However, we do not place onr decision on the narrow technicality of the absence of the word “to” in the conveyance to the grantor’s grandchildren, as we give effect to the grantor’s intention by projecting the trust over their estate. We think, in view of the various contingencies expressed in this deed and the provision for future beneficiaries who may never exist, the implied authority to sell with the approval of the chancellor, the uncertainty of the events which finally determine the last taker of the property, and the provision for a division among the children of the grantor’s daughters who survive their mothers, that the deed should be construed as passing the fee to the trustee. We wish to note that we have not overlooked the line of decisions, of which Fleming v. Hughes, 99 Ga. 444 (27 S. E. 791), may be cited as a type, that a conveyance to a trustee in trust for one for life, with remainder to the surviving children of the life-tenant, and, in default of such children, with remainder over to others, passes to the trustee the legal title of the life-estate only. In such cases there were no complications as to indeterminate remaindermen, implied power of sale, and other indicia reflecting the grantor’s intention to convey the whole fee to the trustee. We have carefully examined the briefs of the plaintiff in error and the cases cited as relevant precedents, and we prefer to place our construction of this deed rather upon the whole instrument as defining the grantor’s meaning than on any technical rule. This deed is sui generis, and is not molded on the form of any instrument in any of the cases to which our attention has been directed; and we decide the questions presented by an interpretation of its own terms as they reveal themselves.

2. The defendants claim title to the land in controversy as having been acquired in this manner: On August 26, 1867, N. E.. Gardner filed a bill against Charles W. Dill, trustee of Lizzie Ida Gardner and Mary. Ellen Gardner, to cancel the trust deed. A verdict was returned, finding that the deed be considered as operative and valid, and that the trust be executed by paying out of the trust property the costs, the fees of counsel for both parties, and an annuity of $1000 to the grantor; and that if the issues and profits of the trust estate be insufficient to pay these sums, the deficiency should be supplied from the corpus in such manner as the chancellor should direct. This verdict was made the decree of the court on May 19, 1869. Subsequently judgments were obtained against N. E. Gardner on notes given for the purchase of some of the property included in the trust deed. Yerdicts and judgments were also rendered in favor of certain plaintiffs who had been Wards of N. E. Gardner, in actions to which Dill, trustee, was a party, and it was therein declared that the fi. fas. issuing on the judgments should first be levied on the property of N. E. Gardner, and, if sufficient property belonging to him could not be found, then on the trust property held by Dill as trustee. Thereafter Dill as trustee filed a petition addressed to the Honorable John L. Hopkins, judge of the superior courts of the Atlanta circuit, reciting the foregoing legal proceedings and the decrees and judgments rendered therein, and alleging that he had made certain payments on them, that some of the fi. fas. were levied on the Whitehall street property, that a .sale by the sheriff would sacrifice the property, that one of his cestuis que trust was dead and the other was at school, and that the income wras insufficient to pay these several charges against the trust estate; and he prayed for authority to sell the Broad street property. N. E. Gardner was appointed guardian ad litem for his daughters, Lizzie Ida and Mollie E. Gardner, and as such guardian- acknowledged service of the petition. On December 31, 1872, Judge Hopkins granted a chambers order empowering the trustee to sell the Broad street property. It was sold under this order and purchased by James W. English and John R. Wallace. The trustee conveyed the land to the purchasers, by deed dated August 13, 1873. These purchasers immediately went into possession of the land, and the defendants are their successors in title. The defendants and their predecessors have been in the actual possession of the land since 1873, a period cf thirty-nine years prior to the institution of the present action. In the former division of this opinion we have construed the trust deed as vesting the legal title in the trustee, and the purchaser at his sale acquired either the legal title to the fee or such color of title as would support prescription. Furthermore, the conceded facts are that the defendants and their predecessors in title have been in actual possession of the land for more than twenty years —a period sufficient to give prescription without being aided by color of title. Inasmuch as the legal title was in the trustee, prescription began to run with the possession of English and Wallace, and had ripened into title before the bringing of this suit. So, whether the deed executed in pursuance of the sale by the trustee under Judge Hopkins’s chambers judgment be considered as passing the legal title or only as furnishing color of title on -which to base adverse possession, the plaintiff was not entitled to recover. Cushman v. Coleman, 92 Ga. 772 (19 S. E. 46). Other questions made in the record are involved in these rulings, and are controlled thereby.

Judgment affirmed.

All the Justices concur, except Fish, C. J., absent.