146 Ga. 536 | Ga. | 1917
(After stating the foregoing facts.)
1. The record in this case presents several questions, but they all hinge on the construction of the deed from Gardner to Dill, trustee. After careful study of its multiform provisions, we have reached the conclusion that the trust therein created is projected over the entire fee. This being the decisive issue, we will proceed to state our reasons for the conclusion which we have reached.
The granting clause, to the “trustee for the said Lizzie Ida and Mary Ellen or their children,” and the final paragraph of the tenendum clause, “I herein again direct that said property, at the death of either of my said daughters, shall vest in and become an absolute fee-simple estate in their child or children, or the issue of their child or children; but if either or both of them should die without child or children, or the issue of such child or children living at the time of their death, then said property shall be subject to the limitations and restrictions hereinbefore set forth,” reflect the grantor’s conception of this contingency: One daughter might die leaving children, and the surviving daughter might die childless, at which time the children of the daughter first to die would be in life. In this contingency the grantor must have intended either that one half of the estate would absolutely vest as a fee in possession in the children of the deceased daughter, or the title to an estate in remainder would vest in the children of the deceased daughter as to such half, burdened with a life-estate in the surviving daughter, which half would be augmented by the other half of the estate on the death of the surviving daughter without issue, with contingent remainder to other children of the grantor upon the prior death of any children of the named daughters of the grantor without issue. We think the latter was the grantor’s intent as gathered from the full provisions of the deed. In order to fully protect this scheme, the granting clause to the trustee for the daughters or their children must have been used advisedly as projecting the trust over the whole estate. This view is strengthened by the recital in the beginning of this deed, that the grantor was “desirous of securing to his said daughters, Lizzie Ida Gardner and Mary Ellen Gardner, and their children by any future husbands, a maintenance, support, and education.” The deed contains no suggestion that the grantor intended to split the estate granted to the trustee, so as to confine it to the daughters.
2. The defendants claim title to the land in controversy as having been acquired in this manner: On August 26, 1867, N. E.. Gardner filed a bill against Charles W. Dill, trustee of Lizzie Ida Gardner and Mary. Ellen Gardner, to cancel the trust deed. A verdict was returned, finding that the deed be considered as operative and valid, and that the trust be executed by paying out of the trust property the costs, the fees of counsel for both parties, and an annuity of $1000 to the grantor; and that if the issues and profits of the trust estate be insufficient to pay these sums, the deficiency should be supplied from the corpus in such manner as the chancellor should direct. This verdict was made the decree of the
Judgment affirmed.