DeVaughn v. Hays, 140 Ga. 208

140 Ga. 208 | Ga. | 1913

Fish, C. J.

(After stating the facts.) The devise to Hays in trust for Otis B. DeVaughn for life, and, after his death, to such child or children as he might leave surviving, and, in the event that there should be no such child or children, then to other legatees named in the will, share and share alike, created a trust only for Otis B. DeVaughn during his life, as no express trust was created for those to take in remainder. Such a trust was executed as soon as it became operative if Otis B. DeVaughn was then sui juris, or as soon as he became so. Vernoy v. Robinson, 133 Ga. 653 (66 S. E. 928), and cases cited. While under certain circumstances a valid trust can be created in this State for the benefit of a person of full age (Civil Code, § 3729; Sinnott v. Moore, 113 Ga. 908 (39 S. E. 415); Moore v. Sinnott, 117 Ga. 1010 (44 S. E. 810)), the mere fact that there is a legal remainder over will not suffice to uphold a trust for one sui juris. The ruling in Lester v. Stephens, 113 Ga. 495 (39 S. E. 109), is not authority to the contrary; for there the testatrix by her will undertook to create a trust for her brother and sisters who were sui juris and “had no intemperate, wasteful, or profligate habits, which it was held she could not do under the Civil Code, § 3729, add that therefore upon her death the trust became immediately executed.

The Civil Code, § 3729, provides: “Trust estates may be created for the benefit of any minor, or person non compos mentis. Any person competent by law to execute a will or deed may, by such instrument duly executed, create a trust fop any male person of age, whenever in fact such person is, on account of mental weakness, intemperate habits, wasteful and profligate habits, unfit to be entrusted with the right and management of property: . Provided also, if at any time the grounds of such trust shall cease, then the beneficiary shall be possessed legally and fully of the same estate as was held in trust, and any person interested may file any proper proceeding in the superior court, where the trustee resides, to have the trust annulled on that ground, if he so desires. Any person having claims against the beneficiary may avail himself of the provisions of the code in relation to condemning trust property at common law.” Treating the trust created for his benefit, in the will under consideration, as falling within the provisions of the code section just referred to — that is, as a “spendthrift trust,” the petitioner sought in the manner prescribed to have the trust annulled on the ground that if the trust was created for any of the reasons specified in such section, they had ceased to exist, for the reason that at the time his petition was filed he was 21 years of age and fully capable in every way of managing and controlling his own property. As the allegations of his petition were not denied by the defendant trustee, the court erred in denying the prayers of the petition.

In respect to the bequest of $5,000 in money given to the defendant in trust for the petitioner, the court may upon the trial provide by decree for the protection of the corpus for the benefit of the contingent remaindermen. See, in this connection, Chisholm v. Lee, 53 Ga. 612.

Judgment reversed.

All the Justices concur.