Milledge v. Bryan

Trippe, Judge. 1. The question in this case which determines it and settles the other issues- presented is, whether the children of Mrs. Catharine Milledge, at the death of Mary Milledge, the grantor, took an equitable or a legal estate in the property mentioned in the deed. Did the trust continue as to them, or was it determined ? Or, in the language generally used in the authorities, was the trust executed at the death of the grantor? If the trust became an executed or determined trust at that time, as to the children, their interest or right, which then first accrued, or rather vested in them, was a-legal interest, and constituted in them a legal estate, subject to those rules of law, and those only, which govern legal estates. We think it is clear, from the instrument creating the estate, that on the death of Mary Milledge, intestate, and without having exercised her power of appointment, [409] the children were let into an immediate right to a share of the property, and that the exclusive right of the grantor, or of Catharine Milledge, to have the income paid to the order of either, was then ended. It could not, of course, have been paid to any order of the grantor after her death, and had it been intended that Catharine Milledge should continue for life to possess that right solely in herself, it would have been so expressed; or, at least, a contrary provision would not have been immediately added. That provision is, that after the contingency of intestacy and non-appointment during life, the property should be held “for the said Catharine Mil-ledge, wife of the said John, and for the children of the said John and his said wife, living at the death of the party of the first part,” the grantor. In Jackson vs. Coggin, 29 Georgia, 403, property was given “to Mary Scott and her children, free from the disposition of any future husband.” It was held in a suit by one of the children against the executors of the will and the mother, that “the mother took as a joint tenant with her children,” and a recovery was had by the child suing. There is nothing in the terms of this instrument, or in any rule of construction, that suspends the interests of the children to the death of Catharine Milledge. Was this interest of the children a legal interest or estate? In the case just cited it was recognized as a legal right in the children, although the interest in the mother was the subject matter of a trust. In Jordan vs. Thornton, 7 Georgia, 517, the bequest was to a trustee for the use of the mother for life, and at her death, to the use of her children. It was held that at the death of the mother, the children were the absolute owners of the property and could recover in their own right. The point was made that it was a continuing trust, under the terms of the will. But it was adjudged to be an executed trust. In Pope and wife vs. Tucker, 23 Georgia, 76, the decision was, that a gift to a father in trust for his children is not an executory, but an executed trust, and' that the children took a vested legal interest, and were entitled to recover in [410] their own right. So in Bowman vs. Long, 26 Georgia, 142, where the bequest was to a trustee for the use of an infant grandson. The grandson had a guardian, and it was held that the child took both the legal and equitable estate, and that the guardian was entitled to the possession of the corpus, and further, that “the attempt to vest the title in a trustee was a failure.” Again, in Walker vs. Watson, 32 Georgia, 264, the conveyance was to a trustee for the use of an orphan minoi’, who had a guardian. The decision was, that the guardian was entitled to the possessioxx of the property as against the trustee, the trust being exeeuted and the possession following the use. The case of Loyless vs. Blackshear et al., 43 Georgia, 327, is more like the one under consideration, in the terms used in the conveyance specifying the beneficiaries, etc. That was a deed conveying certain, lands to the' husbland as trustee for his wife and children. It was held that the mother and her children then ixx life, took an estate as tenants in common, in fee simple, and that the chilclx’en were entitled to a partition, in a proceeding in their own right, of the lands thus conveyed. These decisions, which ai’e in accordance with all the authorities since the statute of uses, fully settle, we think, that the children of Mrs. Catharine Milledge took, at the death of Mary Milledge, an estate, as tenants in common with their mother, in the property remaining at the grantor’s death, and that it was a legal estate in them, unaffected by any trust, the trust, except as to their mother’s interest, being determined by the death of the grantor. The statute of uses declares, that “when any person shall be seized of lands to the use, confidence or trust of another person,” that person shall “stand and be seized or possessed of the land, of and in like estates as they have in the use, trust or confidence, and that the estate of the person so seized to uses shall be declared to be in him or them that have the use in such quality, manner, form and condition as they had before in the use2 Bl. Com., 333. 2. The deed was executed by Mary Milledge, and the orders were passed by the Judge, in Chambers, seyei’al yeai’S before [411] the Code went into operation. The only authority that could be-claimed for the power exercised by the Judge was the Act of 20th February, 1854. Prior'to that Act, it was held, in Arrington vs. Cherry, 10 Georgia, 429, that a Judge, at Chambers, had no power to order the sale of trust property; that chancery jurisdiction was conferred upon the Superior Courts and not upon the Judges thereof. It was never claimed in any case that the Judge, at Chambers, had power to order the sale of the legal estate of minors, or of any other person. There was another mode specially pointed out by law to effect the sale of the property of minor children, or of other wards, such.as lunatics, etc. The general rule was by an application to the Court of Ordinary. Whenever jurisdiction was exercised by a Chancery Court for that purpose before the Act of 1854, it was upon a regular proceeding in equity, and upon special cause shown. The Act of 1854, giving power to a Judge in Chambers to appoint and remove trustees, and to order the sale of property under certain conditions, applied only to cases of trust estates; such estates as should be in the hands of trustees, and perhaps to such property or assets as might be within equity jurisdiction by reason of some pending litigation in her Courts. In the case under consideration, where the estate in the children of Mrs. Catharine Milledge was a legal estate, there was no place for a trustee to fill, so far as they were concerned — no power to appoint to such an office, and of legal necessity — no authority to invest such a person with the right and control over the whole property. All the proceedings as to the appointment of the successor to the former trustees who resigned, and as to the order empowering the successor to incumber by mortgage the whole property, were founded on the assumption that the trust continued for the whole, the children as well as the mother. This not being true, to the extent of the children’s interest, such proceedings were without authority of law. Judgment reversed.