Sinnott v. Moore , 113 Ga. 908 ( 1901 )

Simmons, C. J.

(after stating the facts as above). 1." As will be seen from the above statement of facts, the 11th item of the will creates what is known as a “spendthrift” trust. There was no positive or direct proof before the trial judge that the sons of the testator were of weak minds or of intemperate or wasteful and profligate habits. The answer of the executors and trustees did nob specifically allege that the sons came within any of the classes for whom trusts maybe created either in Pennsylvania or in Georgia; it simply asserted that the testator knew the character and habits of his sons and accordingly made provision for their benefit. George M. Moore did not specifically allude to the question in his answer, but relied upon the fact that the executors and trustees did nob show that the sons were within the classes for whom trusts may be created. The trial judge ruled that the burden was upon the trustees to make this proof, and that, as they had not made it and as the law presumes every man to be compos mentis, the spendthrift trust sought to be created must be held to be executed. This ruling is the subject-matter of the first exception made by the plaintiffs in error. The law of this State (Civil Code, § 3149) allows property to be devised or bequeathed in trust for the benefit of any minor,, person non compos mentis, or any male person of age who is, “ on account of mental weakness, intemperate habits, wasteful and profligate habits, unfit to be entrusted with the right and management of property.” The law of Pennsylvania is, we understand, even more liberal in this respect. See In re Moore’s Estate, 48 Atl. Rep. 885, where this same will was under consideration. When, therefore, a father has a son who belongs to one of the classes enumerated in the code, the law gives such father the right and power to make a will or deed by which he can create a trust of this character. When he makes such a will or deed, it is prima facie evidence that, in his judgment, such a trust is necessary for the protection of the son and for the preservation of the property. While it is true that the law presumes every man to be of sound mind and of good habits, it also presumes that a man knows the law and will not willfully violate it in making a disposition of his property. Thus there is-one presumption against another, and we think the first should yield to the other. When by the disposition made of his property a father declares that in his judgment it'is necessary to create a trust.for his son, the presumption in favor of the validity of the act of the father overrides the presumption, acted on by the trial judge in his decision, that all men are sui .juris. We think the burden is upon the person contesting the trust to show that the named beneficiary does not come within the classes for whom trusts may he created. Indeed, our code seems to place this burden upon the beneficiary or his creditor; for it provides that the beneficiary or creditor may show that, even if the beneficiary has been within one of the classes enumerated, the grounds of the trust have ceased to exist. Civil Code, § 3149. Some person interested must file his petition in the superior court of the county where the trustee resides, and show to the court that the grounds of the trust have ceased. The trust then becomes executed. Moreover, it is scarcely to be presumed that a father would willfully and knowingly, in his last will, place his son in such, a class unless he had the best of reasons for so doing. The father has seen the son grow up from infancy, and is familiar with his habits, his expenditures, and his use of money, and no one is better fitted than the father who reared him to determine his capacity to take charge of an estate. We think it can not be said that a father will put upon the records of the country an instrument which classes his son as one incapable of being entrusted with the management of property, unless absolutely convinced that it is necessary to do so. If the father wishes to punish the son for misbehavior, this can be much better accomplished by disinheriting the son or by leaving him hut a small portion of the estate. After a careful consideration of the whole matter, we have come to the conclusion that the burden is upon the beneficiaries to show either that the grounds of the trust have never existed or else that they have ceased.

2. The law of Pennsylvania permits trusts which are created for the purpose of protecting the beneficiary from his own improvidence and from the demands of his creditors. Such a trust is valid under the laws of that State, and is also valid under the laws of this State if the beneficiary is within one of the classes designated by our code. If the beneficiaries in the trust under consideration are within these classes, we see no reason why the trust for them, created in Pennsylvania, is not valid and binding in this State.

3. A father, resident in Pennsylvania and owning land in Georgia of which he is about to dispose, is presumed to know the law of this State upon the subject. When, therefore, he creates a trust for the benefit of his sons and places the title in his executors and trustees, the trust will, until some proof is offered to show that the sons do not come within any of the classes enumerated in our code as proper beneficiaries of a trust, be held valid here, and the property devised in trust will pass to the executors and trustees under-the will. If the executors and trustees reside in a foreign State, and, for that reason, can not qualify as executors in this State, and an administrator with the will annexed be appointed, the latter stands in the shoes of the executors nominated by the testator, and is entitled to take possession of the property and administer it under the will. The trust being valid, the beneficiaries have no right to interfere with the administration in this State, and, as all parties admitted that there were no debts due by the estate to creditors in this State and that the assets in Pennsylvania were more than sufficient to pay all the debts of the estate and all special legacies, it would be the duty of the administrator to account to the executors and trustees in Pennsylvania for the proceeds of any sale of the property he might make.

4. Whether the foregoing, as to the right to create a spendthrift trust, be correct or not, we are clear that the three sons of the testator have no right to interfere with the administrator with the will annexed in the discharge of his duties in the administration of the property under the will. It will be seen by reference to the statement of facts that the beneficiaries have only a life-interest in the property left in trust for them. The will expressly puts the title to this property in the executors and trustees, with direction to them to pay the income, rents, and profits to the beneficiaries. But it was said that this part of the will was void, because such a trust can not be created under the laws of this State, — that our law does not permit a trust to be created for the benefit of a person sui juris. We concede that a trust can not be created here for the benefit of a person sui juris, without limitation over, but that is not what was attempted in the will now under discussion. This will created a trust for the benefit of each of the sons for life, with limitation after his death in trust for the benefit of his brothers. There is, we think, no statute here or elsewhere which prevents the creation of a trust for the benefit of one person sui juris for life, with limitation over to another person sui juris. There is quite a difference between creating a trust for the benefit of one person sui juris alone and creating a trust for his benefit for life, with remainder over in trust for another. The case of Lester v. Stephens, 113 Ga. 495, ruled against the validity of the trust, because there was no limitation over. If Mrs. Stephens had given her property in trust for her brother and sisters for life, with limitation over to their children or to other persons, the case would have been quite different. So with the other cases relied on by the defendants in error.

It was also claimed that the trust was invalidated by the fact that the ultimate remainder to charitable uses had failed, the will having been executed within less than a calendar month before the death of the testator. Under the law of Pennsylvania a bequest to charitable uses is void unless made more than a calendar month before the testator’s death. In Georgia a bequest to a charitable institution is void unless the will was “ executed at least ninety days before the death of the testator.” Civil Code, § 3277. It was conceded by all parties that the charitable bequest was void for the reason stated; but we think that this does nob make the entire will void. The Civil Code, §3259 expressly declares that, “ If a will be legal in part and illegal in part, that which is legal may be sustained unless the whole will so constitute one testamentary scheme that the legal alone can not give effect to the testator’s intention; in such case the whole will fails.” This charitable be-, -quest was not illegal when executed, but became inoperative from the fact that the testator died within a few days after the execution of the will. This does not avoid the entire will. The whole testamentary scheme does not depend upon this bequest, and the rest of the will may be given effect without enforcing the bequest to charities. See, as to this matter, In re Moore’s Estate, 48 Atl. Rep. 887. Each of the sons may still enjoy his life-estate, and in the event of the death of one his share goes to the others. When all of the sons have died, the testator desired that the property should be devoted to charity. That portion of the will having failed, it would seem clear that there is a resulting trust for the benefit of the heirs of the testator; though that is a matter we need not decide, as we are dealing with the present and not with the distant future. What we do decide is that a trust may be created for the benefit of a person sui juris for life, with remainder over in trust for the benefit of another person sui juris. That, we hold, is. what is done by the llth item of this will.

5. Under the facts of the case as stated above, we think that a sale of the property in Augusta by the receiver, under a proper order of court, for $40,000 (which all parties agree is a fair price) and a deed made by the receiver would convey the title and interest of ¿11 the parties; and this is true whether the beneficiaries under the llth item agree to the sale or not.

6. The proceeds of such a sale, whether treated as realty or personalty, would belong to the trustees, to whom they should be paid after deducting the necessary expenses incurred in the administration of this portion of the estate of the testator.

7. The exceptions made in the cross-bill of exceptions by George M. Moore, one of the beneficiaries, are contrary to the rulings made-above, and we will not deal with them seriatim, or further than is done in the above opinion. If we are right in the rulings made, none of the exceptions made in the cross-bill can be sustained, and the trial judge committed no error against the beneficiaries in any of the rulings there complained of.

Judgment on main bill of exceptions reversed; on cross-bill affirmed. '

All the Justices concurring.