183 Ga. 309 | Ga. | 1936
A. D. Fine and Mrs. Jacob Silver, beneficiaries of a trust estate created by the will of their mother, Mrs. Gertrude Fine, filed a petition in equity against J. Saul, one of the trustees, and Travelers Insurance Company. The allegations 'of the petition, other than those shown in the opinion, are substantially as follows. The plaintiffs’ mother, Mrs. Gertrude Fine, died in the year 1929, and her will was probated in the court of ordinary of Fulton County on November 4, 1929. The plaintiffs were minors at the time of the death of their mother. The will provided that the trustees and executors should, as trustees, hold the property until each child should become twenty-seven years of age; that they should use the income and, if necessary, the corpus of the property for the children’s support and education. It authorized the executors and trustees to sell any of the property and to reinvest and hold the proceeds without any orders of any court. It named J. Saul, Hyman S. Jacobs, and H. Saul as “executors of her will” and as “trustees” for her children, and provided that they should not be required to give bond or file reports or returns of any kind to any court, or to obtain any orders of any kind in the management, sale, disposition, or settlement of the estate (item 8). It did not specifically authorize them to lend on real estate.
The defendant having interposed demurrers general and special, and the Travelers Insurance Company having filed an answer setting out the claim of J. Saul against that company, and that Abe Saul and Herbert Saul, sons of J. Saul, claimed the title to this fund, the plaintiffs offered to amend their original petition in the following respects: (1) They sought to make Hyman S. Jacobs and H. Saul, the other executors and trustees, and Abe Saul and Herbert Saul, the claimants to the fund, parties defendant. They alleged further that the executors had discharged their duties as executors, and were now holding the property in their hands as
As we construe the plaintiffs’ pleadings in their entirety, there is no effort to administer an estate. Therefore the allegations and prayers for equitable relief do not encroach upon jurisdiction of the court of ordinary. The court of ordinary never had, and never could exercise, jurisdiction to enforce the terms of the trust imposed by the deceased upon the defendants. Under the terms of the will two separate duties were imposed upon J. Saul, H. Saul, and Hyman S. Jacobs: One was the duty imposed upon
Equity has jurisdiction of trusts and trustees such as are here involved. “Trusts of every kind, not generally cognizable at law, are peculiar subjects of equity jurisdiction. Civil Code, § 3779 [1933, § 108-117]. If the trustee omits to act when required by duty to do so, or is wanting in necessary care and diligence in the due execution of the trust which he has undertaken, a court of equity will interpose. Jones v. Dougherty, 10 Ga. 273. The relief granted, in cases of trust, will always be so molded and framed as to render the trust effectual, and secure the best interests of all parties. Civil Code, § 3783 [1933, § 108-118]. To preserve a trust estate, to supervise its management, to hold the trustee to the line of duty, for 'the purpose of preserving its corpus for the benefit of the beneficiaries, is an elementary branch of equity jurisprudence. Johns v. Johns, 23 Ga. 31; Knight v. Knight, 75 Ga. 386 (3). The judge of the superior court of each county has power, either in term or at chambers, to remove and appoint trustees. Civil Code, § 3744 [1933, § 108-303]. When a court of equity obtains jurisdiction for one purpose, it will proceed to give full relief to all parties with reference to the subject-matter of the suit, where it has jurisdiction for' that purpose. § 4522 [1933, § 37-105].” Clark v. Clark, 167 Ga. 1, 18 (144 S. E. 787). See Citizens & Southern National Bank, v. Clark, 172 Ga. 625 (158 S. E. 297).
The trustee, J. Saul, with the assent of the other trustees, II. Saul and Hyman S. Jacobs, borrowed $15,000 in the name of J. Saul & Company, dominated by said J. Saul. The note was secured by á lien on real estate, but the security deed was not recorded. The property was burned, and the trustees permitted the loss to be paid to J. Saul, who collected $10,000. All of said
Headnotes 4, 5, and 6 need not be elaborated.
Judgment reversed.