Sargent v. Burdett

Atkinson, Justice.' The official report states the facts. According to the record in this case, the defendant in execution, H. J. Sargent, being the owner of the property levied on, previous to the rendition of the judgment against him, conveyed the same by deed to the claimants, the same to be held by them as trustees, the incomes, rents and profits of the property to be applied to the support and maintenance of the grantor and his wife. The grantor was sui juris, in the full possession of his mental faculties, else he could not convey by deed at all; and the only reason assigned by him for the creation of this alleged trust in his own behalf was, in the language of the deed, 117 “that he is far advanced in life, .being more than sixty-nine years old, and, by reason of great bodily affliction, has become much enfeebled physically, and is now unable to manage, superintend and protect his estate.” The statute of uses was designed to discourage the practice of creating trusts, it being thereby declared to be the settled policy of the English law, accepted and incorporated by us in our system of jurisprudence, that the title to real property should follow the use; and therefore express trusts are the exception to the general rule and are capable of creation only in cases provided for by express statutory enactment. Our code provides for the-creation of trusts only in favor of certain specified classes of persons, viz: minors, persons non compos mentis, and such persons who, on account of mental weakness, in-; temperate habits, wasteful and profligate habits, are unfit to be put in the management and right of property. Since the passage of the woman’s enabling act of 1866, though prior thereto it could be done, a trust cannot now be created in favor of a woman because of her sex alone, because, whether she be feme sole or feme covert, she is capable to take in law the absolute fee, free from the debts and control of her husband; and therefore inasmuch as a trust attempted to he created in favor of a woman, married or single, stands executed eo instanti with its creation, it is incapable of being created. Upon this reasoning, it has been held in Gray v. Obear, 54 Ga. 231, that a trust estate cannot be created in property in this State for the sole benefit of a full grown man who is sui juris, and be conveyed to a trustee for the purpose of protecting it against his creditors, or for the purpose of depriving him of the free use and enjoyment of such property as the owner thereof. This general statement is of course with the qualification, that if there be limitations- over and restrictions in favor of other persons for whose use a trust incapable of being created, the 118 •trust estate would be upheld. By section 2314 of the code, in case of an executed trust for the benefit of a person capable of taking and managing property in his own right, the legal title is merged immediately into the equitable interest, and the perfect title vests in the beneficiary, according to the terms and limitations of the trust. The words, “capable of taking and managing property,” relate to the mental and not to the physical capacity; for whatever may be the physical condition of a cestui que trust, if he labor under no mental infirmity which prevents the management and control of his estate, a trust in favor of such a person is, nevertheless, executed. The section of the code (2306) which undertakes to define for what persons trust estates may be created, takes no account of physical infirmities. The only considerations which enter into the classification of those persons for whom trust estates may be created, are those which relate to mental, and not physical, disabilities; for instance, minors, and persons non compos mentis, and persons who, on account of mental weakness, intemperate habits, wasteful and profligate habits, are unfit to be entrusted with the control and management of property. For a person so situated and so constituted mentally, a guardian may be appointed for the preservation and protection of his estate. Such persons are deemed non compos mentis in so far as the same concerns the appointment of guardians for the management of their estates. See sections 1658 and 1852 of the code. And if necessary to the protection of their estates, they may have them placed in the hands of guardians. Gray v. Obear, ex’r, 59 Ga. 679. It will be observed that it is the mental imbecility, and not the physical weakness resulting from old age, rendering one incapable of managing his estate, which makes him subject to have a guardian appointed to take charge of and manage his estate. So it is the mental weakness, or that intern 119 perance, wastefulness and profligacy of habit, which indicates the existence of an unsound, an unbalanced mind, and which exists to such an extent as to unfit one to be entrusted with the management and control of property, which enables him to be the subject of a trust. Unless these conditions exist, then he cannot be a cestui que trust under a trust estate created for his benefit alone upon the conveyance of a third person. If being already possessed of an estate as of his own right, holding the legal title and as well the beneficial use, it would seem a strange anomaly in the law which would enable the owner of the property to convey to trustees for his own use his own estate, with no limitations over in favor of third persons whose interests might in future attach. JEo instanti with the execution of such a conveyance, there would be a merger of the title with the beneficial interest. The legal effect of such an instrument would be to convey no title, legal or equitable, out of the grantor, but leave it where it was before the execution of the deed. In the case now under consideration, there is no suggestion of an impaired intellect by reason of advanced age as the inducement to the execution of this conveyance. A man in the full possession of all his intellectual faculties, simply undertakes to convey to trustees his own estate, to be held for his own use. Whether it be the original object designed to be accomplished by this trust deed or not, it appears in this case to have brought about one of the exact results intended to be defeated by the statute of uses, when it declared that trusts, of the character now under consideration, should stand instantly executed, and that was to prevent such a conveyance of one’s property as would enable the alienee to hold it for the beneficial use of the grantor as against the creditors and free from the debts and contracts of the grantor. Inasmuch as the trust sought to be declared stands executed upon the instant of its crea 120 llon, the deed is void and passes no title, legal or equitable, into the persons named as trustees. The jury-having found the property subject, and the trial judge-having denied a new trial, his Judgment is affirmed.