Reid v. Reid , 38 Ga. 24 ( 1868 )

Harris, J.

The bill filed alleged that the grand-father of Florence Reid, in order to make provision for the mother of said Florence, and said Florence gave to respondent, m trust for them,, land mules, etc., a life-estate in Mrs. Reid in said property, and at her death the property to vest in her children; that Mrs. Ried died, leaving but one child, the complainant, and that defendant took upon him said trust, and promised to carry it into effect. The bill alleged that defendant received the property from Benjamin O. Keaton, the grandfather of complainant, and gave a receipt in writing therefor, a-copy of which is appended, as an exhibit, to the bill. Mismanagement of trustee was alleged, bad character, etc., and appointment of a Receiver asked, to take charge of the property in controversy and prevent waste.

To the bill thus framed, a general demurrer was filed by the defendant. Upon argument below, the demurrer was overruled. Judge Walker and myself affirm that judgment. As the allegations of the bill were admitted by the demurrer to be true, we cannot perceive how, a trust for complainant being alleged and admitted, a demurrer could be sustained. Judge Warner places his dissent from us upon the ground that the receipt appended shows no trust for the complainant in the property given by Keaton. Whether there be an actual or implied trust for complainant, cannot be ascertained until the answer and other proofs in the cause shall have been heard before a jury. To it, under the charge of the Court, we remit that question. I am persuaded that there is an ambiguity in the receipt which requires explanation and which the Code allows to be removed by parol testimony.

The receipt acknowledges the trust for his wife, Mrs. Mollie A. Ried, (mother of complainant,) and defendant agreed to hold the property for her “as Keaton’s will directs.”

The paper prepared by Keaton (who is still alive) and called his will, and referred to in Reid’s receipt, when examined will be found to make no mention' whatever of his daughter, Mrs. Reid or her daughter, but devises the bulk of his property by separate paragraphs, to his sons and to a daughter, her share under certain limitations and restrictions.

The question, then, under the receipt, is whether Keaton and Reid did not both have reference to the limitations of this latter devise — Keaton giving to Mrs. Reid as he gave to the other daughter, and Reid receiving the property under the like restrictions. .

If this was the donor’s purpose — as the receipt is clearly ambiguous — there is now no technical rule to prevent him from shewing what was intended. I am sensible of the fact that it has been adjudicated that a remainder cannot be established by parol testimony, but when Keaton shall have been heard as a witness and the reference in Reid’s receipt — to his holding the property “as Keaton’s will directs” — fully explained by him, very probably all the ¿difficulties which would embarrass at law can be readily surmounted in a court of equity, especially when dealing with a trustee.

We all unite in affirming that portion of the judgment below in which the Judge refused to take the property out of the possession of Reid and place it in the hands of a Receiver. The testimony as to Reid’s habits and character was conflicting — but after weighing it, and refusing the prayer of the complainant, we will not interfere with the exercise of a discretion which is not shewn to have been abused.

Judgment affirmed.