172 Ga. 553 | Ga. | 1931
On February 15, 1865, Samuel B. Stanford, in consideration of natural love and affection for his daughter, Mary C. Lovingood, wife of James M. Lovingood, by his deed gave and conveyed described realty to his said daughter, “as trust property for her sole and separate use, benefit, and advantage for her life, exempt and free from the marital rights, and all debts, liabilities, and contracts (present and future) of said James M. Iiovingood, or any other future husband she may have, and at her death to such child or children or representative thereof as she may leave in life.” This deed contains this habendum clause: '-“To have and to hold said property to said daughter and her children as trust property as above specified forever.” Said deed .contained this provision:
Auld by his will devised this property to his wife, Rachel Auld. The latter died testate. By her will she named Anne Duncan her executrix, and directed her to hold the property together, care for it, and preserve it during the life of Robert Auld, a son of testatrix. James M. Lovingood died on May 27, 1897. Mary C. Lovingood died on April 22, 1924, leaving five children living at the time of her death. Two of her children, Maggie Bridwell and Addie Blackwell, died prior to the death of their mother. Mrs. Blackwell left four children, and Mrs. Bridwell died leaving no children. In 1929 the children and grandchildren of Mary C. Lovingood brought, in
In the granting clause of the above deed the real estate therein described was conveyed to the daughter of the grantor “as trust property, for her sole and separate use, benefit, and advantage for her life, exempt and free from the marital rights, and all debts, liabilities, and contracts . . of said James M. Lovingood, or any other future husband she may have, and at her death to such child or children or representative thereof as she may leave in life.” The land, the subject-matter of the deed, is thus expressly conveyed as trust property. The habendum clause of this deed expressly declares that the daughter is to have and to hold said property to herself “and her children as trust property” forever. The deed appoints the husband of the daughter as her trustee “to preserve and protect her rights in said property.” The deed does not expressly appoint a trustee for the children of the daughter; but the deed conveys the property to the daughter as trust property for her use during her life and at her death to such child or children or
Taking the instrument as a whole, we are of the opinion that the manifest purpose of the grantor was to create a trust which embraced both the life-estate of the daughter and the remainder interests of her children or representatives of children. The trust did not become executed as to the remaindermen until the death of the life-tenant, as the property was granted to such child or children, or representatives thereof, as the daughter might leave in life at her death. Watts v. Boothe, 148 Ga. 376 (96 S. E. 863); Sparks v. Anderson, 150 Ga. 58 (102 S. E. 423). The trust in this land being thus created for the use of the daughter, and at her death for the use of such child or children or representatives of child or children as she might leave in life at her death, the judge of the superior court was authorized and empowered, upon the application of the daughter and of her husband as her trustee, the daughter holding the title as trustee for the remaindermen, to pass an order for the trustee to sell this land as trust property, and to provide for the investment of the proceeds of the sale in other lands upon the same terms as the land sold was held. When this land was then sold under such order, the title thereto of the children or representatives of children of the daughter was divested, and the purchaser got a good title thereto. It follows that the trial judge, to whom the case was submitted for decision without the intervention of a. jury, erred in holding that the purchaser of this land under the order passed by the judge of the superior court authorizing the sale got no title, and that the' plaintiffs were entitled to recover this land against one holding title under a purchaser at such sale.
Judgment reversed.