105 Ga. 727 | Ga. | 1898
In the present case it is necessary to determine whether there was, at the time the judgment of the plaintiffs below was obtained, an existing executory trust. If so, the-
Counsel for plaintiff in error contends that “there were no »children'of Mary Susan Neal [the daughter of the grantor] in 'life at the time of the execution of said trust deed, and chili-dren born subsequently to that time took no interest thereunder; hence the trust created by said deed was created for the ¡-sole use and benefit of Mary Susan Neal;” and cites the cases >-of Lofton v. Murchison, 80 Ga. 391, and Baird v. Brookin, 86 Ga. 709. He then argues that the trust was executed by the ‘“married woman’s act” of 1866. This we think is not true. ‘ The rules of -construction resorted to in cases where a deed does • not show whether a grantor intended to convey a life-estate with ■ remainder or to-create an estate in common, or where a convey- ■ anee' is to a person or persons and their children, without stating •whether unborn children are included, are not to be invoked -where the intention of the grantor may be determined from words and expressions in the deed itself. In the deed now under consideration the property was conveyed to the trustee for the sole use and benefit of the daughter “during natural lifé,” and at her death “then” to be divided equally among her children. If this daughter, “who has only a life-estate in said property,” died “without a lawful child or children living,” the trustee was to hold the property and its increase to be divided equally among the heirs at law of the grantor. The cases cited by counsel and also the cases there referred to, among others the case of Wiley, Parish & Co. v. Smith, 3 Ga. 551, were based ' upon the rule in Wild’s case, 6 Coke R. 16 b. That rule applies where -the,conveyance is to a person and his children or issues,
The facts of this case differ materially from those of the case of Carswell v. Lovett, 80 Ga. 36. In the latter case the trustee held the property for the use of the beneficiary to protect it against the debts of her husband, the husband had died, and at the death of the beneficiary the property was to be divided among her children and their representatives, the remainders being thus vested. In the present case the property was to be divided equally among the children of the life-tenant, if any sur'vived her; if not, the trustee was to hold it and its increase to be •divided equally among the heirs of the grantor, the remainder-men being uncertain and the remainders contingent. The facts ■of this case are more nearly like those in Cushman v. Coleman,
The trust being executory and the judgment valid and binding upon the trust estate, the trial judge rightly held, upon the-trial of the claim case before him without the intervention of a-jury, that the property was subject to the execution' issued from that judgment. Judgment affirmed.