172 Ga. 625 | Ga. | 1931
Lead Opinion
This is the second appearance of this case in this -court. Clark v. Clark, 167 Ga. 1 (144 S. E. 787). The question involved, when the case was here before, was whether the trustees could retain investments made 'by and received from the creator of
When the case went back it was- referred to an auditor to pass upon the law and the facts. The auditor made his report of his findings of law and fact, to which both the plaintiffs and the defendants filed exceptions of law and of fact. In the exceptions filed by the trustees they set up that there was an ambiguity in the will of the testator relating to the powers of the trustees to retain his mill stocks.
The auditor found that the language of the will was plain and unambiguous, and that, under the construction put upon the instrument by this court, such meaning could not be changed by parol proof that the testator desired or intended it to have a different meaning from that expressed in the will. To this finding of the- auditor the trustees except upon the ground that language in the will, which is apparently plain and unambiguous, could be shown by parol evidence to contain a latent ambiguity which, when so created, could lawfully be explained by parol evidence as to the true meaning and intention of the testator. It is undoubtedly true that ambiguities in a will may be explained by parol testimony, and that the circumstances surrounding the making of the will may be considered in construing it. It is likewise true that where the language of a will is doubtful or ambiguous, parol evidence is admissible for the purpose of assisting the court in ascertaining its
Now what are the facts upon which the trustees rely to show that it was the intention of the testator that they could without risk retain these mill stocks? One of these facts is that the will expressly conferred upon the trustees the power to borrow money and to mortgage or pledge the title to the property of the trust estate to secure the money so borrowed. No implication which would authorize the trustees to retain these speculative securities arises from this language. On the contrary this provision, instead of authorizing the trustees to retain these stocks, empowered them to deal with them in a manner which might result in the loss thereof. Again, it is urged in behalf of the trustees that the testator in his will directed them to pay from the income of his estate the sum of $400 per month to his Widow for the support of herself and the support and education of his children; that the income from the trust property, if invested in the securities in which the trustees could invest the trust funds by our statute without the approval of the judge of the superior court, would not have been sufficient to make this payment; and that from this fact the conclusion can be
The express power conferred on the trustees and their successors to sell without the order of any court any or all of the trust property, and to invest the proceeds in their discretion, did not confer upon the trustees authority to retain these stocks. This -we held when the case was first before us. The discretion vested in the trustees was one which they could only exercise according to the law governing the investment of trust funds. They could invest the proceeds in the securities in which the statute authorized
So the question now arises, can such direction be deduced from certain facts which were brought out before the auditor and with which' we will now deal? The direction to retain these stocks could not be inferred from the fact that the testator was the executor of his father’s will, which contained provisions similar to his own, and from the fact that under such provisions of his father’s .will the testator held the stock of the Sutherland Manufacturing Company for the estate of his father. The testator had the right to retain this stock under his father’s will, as these trustees had the right to do under his own will; but in either case the retention was at the risk of the testator in the former case, and at .the risk of the trustees in the present ease.
Again, it is insisted that the testator, in a letter written a few days before his death to the trustee, Clark, used the language: “I am relying on you to never let the control of the Sutherland away from my estate. The arrangement I made with you I would not have with any one else.” From this declaration the conclusion is drawn that the testator intended by his will to authorize the trustees to retain this stock until under their management it became totally worthless. Miss Lillian Clark, a sister of the testator, testified that he wanted to buy some of the Sutherland mill stock
So we are of the opinion that there was no ambiguity, patent or latent, in the will; that parol or written declarations of the deceased, extrinsic of his will, were not admissible to create such ambiguity, and to explain the same; and that to give effect to the declarations of the deceased would be adding to the will a provision not contained therein and which could not be shown by such declarations of the testator. We recognize the hardship which falls upon the-trustees by reason of the ruling which we make; but it is of great importance that the statute authorizing investment of trust funds should be enforced. As we have seen, this statute is applicable to the retention of stocks as well as investment of trust funds in stocks. This statute should be strictly enforced when trustees place themselves in a position in which their interests are antagonistic to the beneficiaries of the trust.
Under the above rulings, the judgment of the trial judge which sustained the findings of the auditor upon this subject should be affirmed. As this ruling controls the case, it is unnecessary to consider any other assignments of error, or to consider the assignments of error set up in the cross-bill of exceptions.
Judgment affirmed on the main bill of exceptions; cross-bill of exceptions dismissed.
Concurrence Opinion
concurring specially. We adhere to the views expressed in the dissenting opinion rendered in the former decision; but the ruling of the majority became the law of the case and constrains us to concur in the judgment of affirmance.