98 Ga. 193 | Ga. | 1896
Tbe plaintiffs sued in tbeir capacity as trustees under tbe will of William Battersby. Tbe testator resided in England. By bis will be named certain persons resident-in England, and certain persons resident in tbis State, as executors and trustees to bold tbe property and dispose of it in accordance with tbe directions contained in tbe will. He-does not appear to have distinguished between those duties which were appropriate to be performed by tbe persons as executors, or those which might bave been appropriately
At the time of the execution of the will, two of the executors and trustees named resided in this State, the others in England. It appears that under the powers thus conferred, those trustees resident in America, on behalf of the estate of the testator, had become possessed of certain bonds
Upon the trial of the case the instructions given by the circuit judge amounted to a practical direction of a verdict for the defendant; and whether or not such instructions were correct depends upon the construction which should be placed upon the will of the testator.
1. As will be seen by reference tO' the extract from the 24th item of the testator’s will, as hereinbefore quoted, it was provided that the trustees in England “may leave” to the trustees residing in America the entire1 management and execution of the trusts contained in the will, in SO' far as they might have reference to and affect property situated in America. We think the testator intended, from the
2. We will now inquire whether the powers thus conferred could be well exercised by one of such trustees. Looking to the same item of the will, it will be seen that the testator, in conferring the powers, uses the language, “I declare that my trustees resident in England may leave to my trustees or trustee for the time being resident in America the entire management of the aforesaid trust, and the •entire execution of the aforesaid powers, except the power of apportionment and allotment, so far as they respectively are, from the situation of the property or for any other reason, to be performed in America,” or vice versa. The use of both the singular and plural numbers in speaking of ihe trustees would imply that the testator had in mind a ■contingency which might and did thereafter in fact arise. Lie recognized the possibility that a time might come when his estate would be represented, by reason of the death or absence of the nominated trustees in each or either of the respective countries, by a single trustee, and it is therefore that he uses the expression “trustees or trustee” for the time being resident in the two countries respectively. The exercise of this power by a single trustee in either of the •countries respectively named was dependent upon his being at that time the sole representative of the trust estate resident in such country; and therefore, one of the named trustees resident at the time of the execution of the will in this
3-4. - As we have heretofore seen, the will, in speaking of the named persons as trustees and executors, does not distinguish between those duties enjoined upon them in the one or the other capacity. It confers upon them, in their capacity as trustees, some powers and imposes upon them some duties which, under our law, would more appropriately devolve upon them in their capacity as executors; but in nominating them, it names them in the dual capacity of “trustees and executors.” The only specific duty which appears to have been imposed upon them in their single capacity of executors was that of receiving a certain legacy bequeathed to each of them who should participate in proving the will, but throughout its entire context the will treats these persons as the accredited representatives of the estate. They were, so to speak, ministers plenipotentiary in so far as their conduct affected the interest of the testator’s estate, or the interest of any person claiming under the will. They were authorized to generally act with reference to the residuary estate, and the trusts and powers contained in the will, as if they were the absolute owners, their decision being in all cases of doubt or dispute absolutely conclusive on all persons beneficially interested. ■ lie declared that such trustees, in dealing with the property committed to their care, should have absolute discretion in the exercise and execution of the powers and trusts created by the will, and all such as might be implied therefrom. It provided that the concurrence of any person or persons beneficially interested shall not be required at any sale, partition, exchange, lease, mortgage, or other transaction, and that the dissent or opposition of any such person could be of no effect. It was further provided, that no person
Affirmed.