186 Ga. 65 | Ga. | 1938
Defendants in error predicate their right to the relief sought on the assumption that the trustees of Mrs. Frances Whetham Clark are invested with the same right given her, as a legatee and distributee of her husband, the testator, under the eighth item in his will, to wit, to have the executors furnish her, not oftener than twice each year, with an inventory and returns of their acts and doings. Plaintiffs in error do not in their brief make the contention that such a right to demand an inventory and returns of the executors is personal to Mrs. Clark and one that can not by Mrs. Clark be assigned, but that neither'the plaintifE trustees, nor Eleanor F. Baker as an individual, had such a right by virtue of the instrument executed by Mrs. Clark. We ought not and will not pass on a theory not advanced. We shall accordingly not raise the question whether the right given her under the will to make reasonable demands of the executors to furnish her with inventory and returns is one which would, as an incident, in the nature of a right appurtenant, pass to whomsoever she conveyed her entire property, including her interest in her late husband’s e,state.
Mrs. Frances Whetham Clark, a person sui juris, granted by deed to Eleanor F. Baker and Elmer S. Mitchell, “for the purpose of preserving her property and estate for the support of herself,” all of her personal and real estate. The instrument also contained a clause in the following words: “And upon the further trust to collect the rents, profits, interest, and income from my said estate and after deducting all proper charges to pay to me quarterly or oftener, at my written request, the said net rents, profits, interest, and income; and upon the further trust upon my decease to pay over the corpus of my estate to my niece, Eleanor F. Baker.” The niece was also sui juris. The Code, § 108-112, declares that “In an executed trust for the benefit of a person capable of taking and managing property in his own right, the legal title is merged immediately into the equitable interest, and the perfect title vests in the beneficiary according to the terms and limitations of the trust.” The clause “capable of taking and managing property” relates to the mental and not to the physical capacity. Sargent v. Burdett, 96 Ga. 111, 118 (22 S. E. 667). If the instrument under consid
The fact that the trustees had the power to sell any or all of the real estate did not itself give them the title to the fee in remainder. Vernoy v. Robinson, 133 Ga. 653, 661 (66 S. E. 928). We have seen that under the Code, for this to be an executory trust, something, after the termination of the life estate, remains to be done by the trustee, “either to secure the property, to ascertain the
Counsel for defendants in error rely upon the language of this court in Sinnott v. Moore, 113 Ga. 908 (39 S. E. 415), that “a valid trust can be created in this State for the benefit of a person sui juris, for life, with remainder over in trust for another persqn sui juris, for life.” In that case there was an ultimate remaindejr, and it was uncertain who would eventually take in remainder. In the decision it was said: “ Under this item each son was to receive the income and profits of one of these equal one-third parts of the residue of the estate, not subject to his debts or to be disposed of by him, the receipts of the son alone to be a sufficient voucher for the trustees as to the disposition of the income and profits. In the case of each son this interest was given for life. If he died before the others, the income from his share was to go to the other tvfo sons, and, upon the death of one of the latter, then to the survivor. Upon the death of all of the sons, the property was to go to the executors and trustees, with full power and direction to found and maintain such charitable or educational institutions as they might deem best, the institutions to be non-sectarian in their character.” It will be observed that in the instant case there is no remainder over in trust for another person sui juris for life. Not having before us a case where a trust was created for a person sui juris, and also a remainder over in trust, the question is not here presented whether in order to uphold an instrument creating such a trust it is necessary that the trust in remainder should be for the benefit of a person for whose use a trust is capable of being created. It should be noted, however, that in Sargent v. Burdett, supra, Atkinson, Justice, after referring to the rule that a trust can not be created in property in this State for the sole benefit of a person sui juris, said: “This general statement is of course with the qualification, that if there be limitations over and restrictions in favor of other persons for whose use a trust is capable of being created [italics ours], the trust estate would be upheld.”
Plaintiffs seek to assert in the courts of Georgia rights under a written instrument which under the laws of this State is invalid. Under such circumstances, before they can prevail in the contention that its validity must be upheld because the instrument is valid under the laws of the State where executed, two things must affirmatively appear: First, that under the law of the State where executed, the instrument is valid. Second, that the law where the contract was executed is applicable, rather than the law of the forum. This burden has not been carried in the instant case. “In the recognition and enforcement of foreign laws the courts are slow to overrule the positive law of the forum.” 11 Am. Jur. § 6. The deed, as stated elsewhere in this opinion, does not describe any property. It does appear, however, from the petition that Mrs. Clark owned real estate in New Jersey, real estate in Pennsylvania, and an interest as legatee in the estate of her husband who died a resident of this State. The petition carries the statement that she is a woman of substantial means; that she is entitled to a beneficial interest for life under the terms of a trust created by her father; and that she owns a substantial amount of stocks and bonds, the latter being in the physical custody of her brokers in Philadelphia. Counsel for defendants in error, laying to one side the fact that her interest as a legatee in her deceased husband’s estate is only a part of the property covered by the instrument here involved, relies, first, on Sterling v. Sims, 72 Ga. 51, where it was held that the right of an heir at law to have her interest in the estate of her deceased ancestor, in the hands of his administrator, is a chose in action; and second, on the proposition that generally the validity of a trust of choses in action created by a settlement or other transaction inter vivos is determined by^ the law of the place where the transaction takes place. Restatement of the Law of Conflict of Laws, § 294. The instrument here involved, however, deals with property other than the settlor’s interest in her late husband’s estate. It will probably be admitted,
It is axiomatic to say that no law has any effect of its own beyond the limits of the sovereignty from which its authority is derived. When the courts of one State give effect to the law of another State, they do so because of comity. “The enforcement of a foreign law and contracts dependent thereon for validity, within another jurisdiction, and by the courts of another nation, is not to be demanded as a matter of strict right. It is permitted, if at all, only from the comity which exists between states and nations. Every independent community must judge for itself how far this comity ought to extend.” Magie, J., in Flagg v. Baldwin, 38 N. J. Eq. 219, 223 (48 Am. R. 308). The courts of this State may by comity enforce or refuse to enforce the laws of a sister State, dependent upon whether such laws, or rights sought to be upheld under them, contravene the settled policy of Georgia. Bush v. Hessig-Ellis Drug Co., 10 Ga,. App. 588, 591 (73 S. E. 1097). See also Southern Express Co. v. Hanaw, 134 Ga. 445, 453 (67 S. E. 944, 137 Am. St. R. 227); Adams Express Co. v. Chamberlin-Johnson-Dubose Co., 138 Ga. 455 (2) (75 S. E. 601). In the cases last cited, this court held, that, although valid under the laws of New York where executed, a contract to make an arbitrary limitation upon the liability of a common carrier for its own negligence is unenforceable. In the Hanaw case Mr. Justice Lumpkin discussed the provision as to comity now appearing as section 102-110 of our Code, and what is mow contained in section 20-504, to wit, “a contract which is against the policy of the law can not
The tendency to read exceptions into well-known principles of law, to restrict or extend a rule that has been followed for centuries, breeds uncertainty, and is not to be commended. Much of the confusion in this branch of the law would not, it is submitted, exist if the courts would merely follow the controlling principle and cease to create exceptions, followed by limitations on the exceptions, and then undertake to distinguish, and to refine the distinctions, and to distinguish the refinements; but instead to follow the course mapped out centuries ago, to wit, that as to contracts affecting realty the law of the State where the land lies will be applied, and to all kinds of personal property it is governed by the lex domicilii of the owner.
A chose in action is personalty. It is so defined by our Code, § 85-1801. Stocks are so classified. “Personal property has no locality other than that of the person having the same in possession, ownership, custody or control.” Molyneux v. Seymour, 30 Ga. 440 (76 Am. D. 662). Mrs. Clark being a resident of Georgia, in connection with the other facts hereinbefore stated, we will not go beyond' the law of this State to test the validity of the instrument under attack. It was error to overrule the general demurrer to the petition. All that took place thereafter was nugatory, and it is not necessary to pass upon the other assignments of error. Judgment reversed.