Bowman v. Long

26 Ga. 142 | Ga. | 1858

By the Court.

Benning J.

delivering the opinion.

These two cases grow out of a bill filed by Jesse L. Long, as the guardian of his minor son, Wm. H. Long, against Robert Bowman, as executor of John Bowman, deceased, to obtain -possession of the legacy left to the minor son, in the .will of John Bowman.

One of the questions in the cases, is, was the guardian entitled to have possession of the “ corpus” of the legacy, for the use of the ward ?

The estate which the ward took, was the fee, or absolute interest, subject to be divested on his dying under the age of twenty-one years. Long vs. Bowman, 23 Ga. R.

Such an estate as that, was in certainty as much as an estate for life; in possibility as much as an estate in fee simple. It is safe, therefore, to rank it as high as a life estate.

[1.] In a life estate, the tenant is entitled to have the possession of the property for his own enjoyment; and all that the remainder-man can require, is, that the “corpus” of the property shall be kept in preservation, to be delivered to him on the termination of the life estate.

This is the general rule. And this, if it applies in these cases, gives this guardian the right to the possession of the “ corpus” of the property bequeathed to his ward. The guardian is the person entitled to the possession of the ward’s property.

Is there anything to take the case out of the general rule? It is said that there is something; namely, the testator’s appointment of a trustee for the ward.

It is true, that the last item of the codicil is in the following words: “ I appoint my son Robert Bowman, trustee for my said grand-son, William Henry Long.” And it is, probably, true, that the testator’s intention in this item was, that his son Robert should hold the property bequeathed to the grand-son, in trust for that grand-son.

But are the words creating the trust, sufficient to effectuate such an intention ? That depends, doubtless, on whether the trust they create, is an executed or an executory, trust. If it is an executed trust, that is, a trust in which, the law “ conveys the possession to the use, and transfers the use into possession,thereby making cestui que use complete owner of the” property “as well at law as in equity,” (2 Black. 333,) then it is clear, that the words are not sufficient to effectuate the intention; for no words can be sufficient to effectuate an intention which is contrary to law. If the trust is executory, the case may be different. In such a trust, the legal title remains in the trustee.

Is this, then, an executed, or an executory, trust ?

[2.] It is not an executory trust, for the trustee has nothing t® do. " There is a settled distinction between trusts, executed and executory. In the latter, something is left to he doney some conveyance thereafter to he made” 2 Kelly, 320, quoting Kent.

It is an executed trust. The statute of uses declares, that "when any person shall be seized of lands, &c., to the use, confidence, or trust, of any other person,” that person shall "stand and be seized or possessed of the land, &c., of and in the like estates as they have in the use, trust or confidence ; and that the estate of the person so seized to uses shall be deemed to be in him or them that have the use, in such quality manner form and condition as they had before in the use.” 2 Black. 333.

This statute it is true, applies only to realty. But what it does for realty, the common law does for personalty.

If then, Robert Bowman, under the codicil became "seized” of, or entitled to, the property, in trust for Wm. H. Long, the estate of Robert in the property, is to be "deemed to be in” William; this, by the statute, so far as the property is realty, and by the common law, so far as the property is personalty. The statute and the common law together, execute the trust as to both.

The result is, that the cestui que trust, Wm. H. Long, took both the legal and equitable title, and that the testator’s attempt to vest the legal title in a trustee, was a failure.

The appointment of the trustee being a failure, that appointment cannot be a thing to take the case out of the general rule aforesaid; namely, the rule which gives to the tenant for life in property the right to the possession of the corpus of the property, for his own use and enjoyment, during his life.

Of course, this rule must be subordinate to the rule that the corpus is to be so kept, that it shall be preserved for delivery to the remainder-man, on the termination of the life estate. The law has ways by which it can effect this object, and yet, not deprive the life tenant of the use and profits of the property, during his life. It can require him to give security for the forthcoming of the property, at the termination of the life estate.

It follows, that the answer to our question, is, that the guardian was entitled to the possession of the “ corpus” of the legacy for the use of his ward; which possession, he was to keep until his ward became twenty-one, if he became twenty-one, and then deliver it to him to be held by him thenceforth in fee; or until he died, if he died under twenty-one, and then deliver it to the remainder-men.

This being the answer to the question, the answer disposes of all the other questions in the two cases.

For if the guardian is entitled to possession of the “ corpus,” he is, of course entitled to have the rents and profits ; and if entitled to these for the use of his ward, they are his ward’s, and he is not bound to accumulate them until it is ascertained whether the ward lives to be twenty-one years old or not.

The guardian having got possession of the property, is to administer it according to law. If it will be according to law for him to apply any part of it, to the education of the ward, or to the payment of lawyers’ fees, he will then have it in his power so to apply it.

In the case of Long vs. Bowman the judgment is to be reversed; in the case of Bowman vs. Long the judgment is to be affirmed. This is the result.