80 Ga. 36 | Ga. | 1888
R. W. Carswell filed- his bill in Burke superior court against Robert O. Lovett, administrator of Mary S. Taylor, Wilhelmina J. Steiner and Sarah C. Heyward, in which he alleged that, on the 9th of December, 1869, he was appointed trustee for Mary S. Taylor; that the trust estate then consisted of two thousand acres of land in Burke county, and certain personal property, mules, corn, fodder, farming utensils, household and kitchen furniture; that the personal property was the accumulation of the trust estate. Said plantation was bequeathed to Mary S. Taylor by her grandfather, Thomas Street, who died in the year 1848. By the 12th and 15th items of the will of Thomas Street, he gave the plantation to her for her own separate use and benefit, free from the debts, contracts and Habilites of her present or any future husband, and after her death to be divided among her children. He appointed her father, Patrick B. Connelly, as trustee of the same. He further alleges that the trustee had died, and that the trust estate was without a trustee .until 1869, when he was appointed by the court on the application of the said Mary S. Taylor; that after he was appointed he
Lovett answered this bill, and set up in his answer that he had been appointed by the ordinary of Burke county temporary administrator on the estate of Mary S. Taylor, and as administrator had made an inventory or appraisment of the personal property belbnging to the said estate ; he admitted that he had the property set out in the bill in his possession, and claimed to hold it as such administrator. He also alleged that the complainant, as trustee, was not entitled to interfere with his administration ; that said trust which is set up in said bill had long since been executed, and the legal title to said land had been in Mary S. Taylor since the year 1866, with remainder over to her children; and that if the complainant had any demand against his cestui que trust, the said Mary S. Taylor, the cause of action thereon accrued in 1874, and the same was barred by the statute of limitations.
Mrs. Steiner and Mrs. Heyward filed their joint answer, in which they admitted that it was true that, by the will of their grandfather, Thomas Street, the land described in the bill was given in trust to their mother during her life, but they deny that they ever were beneficiaries of said trust estate, but on the contrary, asserted that said trust
The twelfth and fifteenth items of the will of Thomas Street, as far as concern this property, read as follows :
12th. “.After the death of my wife, Mary S., I give and bequeath all my estate, both real and personal, to the children of my stepson, Patrick B. Connelly, and those born and that may hereafter be born to him in wedlock......
15th. “ I direct that my executor shall, in parceling out that portion of my estate which shall be the share of his female children, . . hold the same in trust for the sole and separate use of said female child, and that in no event shall it be subject to the debts, liabilities or contracts of any husband to whom they shall be married, but that said female child shall have the use of said property during their*41 natural lives, and at their death it is my wish that it be divided between her children and their representatives-’ ’
Upon the hearing of this case by the chancellor, upon the bill and the answers thereto, he refused the injunction prayed for. The complainant excepted, and brings the case here for review. The main question argued before us was, whether at the time Carswell was appointed trustee by the judge of the superior court, the trust had become executed. Jf the trust was executed at that time, there was no necessity for the appointment of a trustee. If the trust had served its purpose and was executed, the legal title merged immediately into the equitable interest, and the perfect title vested in her according to the terms and limitations of the trust. If it was executed, she was capable of taking and managing her own property, and there was no necessity for the appointment of a trustee, and the order of the court appointing him was void and of no effect, although Mrs. Taylor may have applied for his appointment and consented thereto.
Judgment affirmed.