Headen v. Quillian

92 Ga. 220 | Ga. | 1893

Bleckley, Chief Justice.

The contents of the deed on which this case depends are, so far as material, set out in the official report; and the words creating a power of sale are substantially recited in the head-note. It is of no consequence whether the trustee, as such, was invested with the legal title to the estate in remainder, beyond what is involved in a power to sell and convey in his own name, or whether the remainder in behalf of children was vested or contingent. It is clear that a power of sale was created, to be exercised by the trustee or not exercised by him at the election of Mrs. Headen, the tenant for life. She could only evidence her election for a sale by writing under her hand, but wheu this was done the power- of sale was complete in the trustee, whether he had any title or not beyond what was necessary for executing this part of his trust. By the express terms of the deed, she could empower him “to sell any part or the whole of said trust estate, and to reinvest the proceeds by her written consent in such other property, subject to the above described trusts, as he shall deem most for the interest of said trust estate.” There can be no rational doubt that by the terms “said trust estate,” as an object of sale, the maker of the deed intended and understood the land- itself which the deed conveyed. Whatever may be the correct legal construction of the-conveyance with respect to the extent of the trust, it is quite certain he thought there was a trust for the children as well as for their mother, for in speaking by the deed of reinvestment, h.e says “subject to the above described trusts.” He evidently thought there was more than one trust. To hold that he contemplated restricting the power of sale to the estate for life would attribute to him a technical narrowness utterly strange to his thoughts and at complete variance with his real state of mind. He looked at the land as covered by a trust which could be contemplated as a double trust, one for his wife and one for his children, and he applied the word estate to the land itself—the thing that was the-subject-matter of the trust, and might be, in whole or in part, the subject-matter of a sale. The power of sale was exercised in the lifetime of Mrs. Headen and with her written consent, manifested both by signing the deed herself jointly writh the trustee, and annexing to it or indorsing upon it a declaration of her assent and approval. To this declaration she subscribed her name. It may or may not be of importance to add, that one of the children at least had not then arrived at majority, for one of them was a minor when the present suit was brought, and is represented in it by a next friend. Judgment affirmed.