Palmer v. Neely, 162 Ga. 767

Palmer v. Neely

162 Ga. 767 | Ga. | 1926

Russell, C. J.

1. A testator under the laws of this State can provide by his will for the creation by his executors of a corporation to which the executors shall convey the residue of his estate for the purpose of carrying on his general business. Civil Code (1910), §§ 3827, 3832; Burrill v. Boardman, 43 N. Y. 254 (3 Am. R. 694) ; Boyle v. John Boyle & Co., 136 App. Div. 367 (120 N. Y. S. 1048) ; St. John v. Andrews Institute, 191 N. Y. 254 (83 N. E. 981, 14 Ann. Cas. 708) ; In re Scott’s Estate, 280 Pa. 9 (124 Atl. 270) ; Schouler on Wills (6th ed.), § 36; Remsen on Preparation and Contest of Wills, 58.

2. Such a corporation is not a mere instrument or vehicle for the administration and distribution of the estate of testator, but is a devisee to whom the executors are to convey the residue of the estate of the testator for the purpose of carrying on his general business, with a bequest of the shares of the corporation to his widow and children as provided in his will; and such a corporation can be created under the Civil Code of 1910, § 2823.

3. A testator by his will can legally provide that the stock of a proposed corporation shall be held by his executors in trust for his widow, his two adult sons, and an adult married daughter, the portions, so given to his widow and sons being given in fee simple, and the portion given to his married daughter being given to her for life, with remainder to her children born and to be born and to her grandchildren as set out in the other portions of his will. A valid trust can be created in this State for a married woman during life, with remainder over to her children born or to be born. Sinnott v. Moore, 113 Ga. 908 (4) (39 S. E. 415). Even if this provision of the will created a voting trust, or if the trust was executed at the time the will took effect, or afterwards became executed, these facts would not wholly destroy the testamentary scheme or the trust estate, so as to entitle the plaintiff to share in the estate of the testator as if there were an intestacy as to the residuum of his estate.

4. Whether the provisions of the will create a perpetuity in the remote limitations therein contained it is not necessary now to decide. Clearly the limitation of the estate to plaintiff for life, and at her death to her children born and to be born, does not create a perpetuity. “When an attempt is made to create a perpetuity, the law gives effect to the limitations not too remote, declaring the others void, and thereby vests the fee in the last taker under the legal limitations.” Civil Code (1910), § 3678.

5. “The petition in this ease is not maintainable as one merely for the construction of the testator’s will; for, under § 4597 of the Code of 1910, only the representative of the estate may ask for the direction of a court. *768Construed as a petition by a legatee for the recovery of property devised in a will, a construction of the instrument may be invoked as a basis for such recovery. But in such ease the petition must allege that the administrator has assented to the devise, or wrongfully refuses to assent. The petition does not conform to the above-stated requirements; and therefore the court did not err in sustaining the demurrer.” Lester v. Stephens, 113 Ga. 495 (3), 499 (39 S. E. 109).

No. 5115. September 25, 1926. Rehearins denied September 30, 1926.

6. Assignments of error not referred to in the briefs of plaintiff in error are treated as abandoned.

7. Applying the above principles, the court did not err in sustaining the demurrer to the petition and in dismissing the same.

Judgment affirmed.

All the Justices concur, except Gilbert, J., disqualified. Whitman & McCowen, Henry C. Hammond, and E. V. Heath, for plaintiff. Hull, Barrett & Willingham and Fullbright & Burney, for defendants.