Bailie v. Carolina Interstate Building & Loan Ass'n

Simmons, Chief Justice. On April 19, 1886, Georg© A. Biadli'e, by a deed the material portions of which are set out by the reporter, conveyed to Harper a certain tract of land in the city of Augusta, in trust for Sarah R. Bailie, 'the grantor’s wife, for life, with remainder over to her children. Harper accepted the trust, and resigned, and the life-'ten'ant appointed the grantor trustee in his steiad, the appointment being in writing, and conferring “'all the plower and 'authority conferred under the original trust, by the terms of said deed.” The execution of the deed, the acceptance of the trust by Harper, his resignation, and the appointment of Bailie and Bailie’s acceptance, took place on the same day. For the purpose of placing improvements upon the land conveyed by the deed, Biailie, as trustee, borrowed money from th'e Carolina Interstate Building & Roan Association, subscribing to stock in the association, and as security for the loan transferred this stock to the association and executed to it deeds to- the land. Subsequently the association filed in th'e city court of Richmond county a suit against Biailie, as trustee for 'his wife and children, and against Sarah R. Bailie, for the recovery of a balance alleged to be due upon the loan, and praying a special judgment against the land; and pending this action the children of Bailie brought their petition to' th'e superior court to enjoin the suit in the city court, and for other relief, claiming that Bailie had no power, under the deed in question, to- borrow the money or convey the land as security therefor. The questions made by th'e petition appear- from the reporter’s statement. In construing an instrument of this .character, the cardinal rule is to seek the intention of the maker; and that intention should he upheld, unless it cle'arly contravenes som’e rule of law. That this gr'antor intended t© create a trust which should he an active; and hot a passive one, and which should extend over both the life-estate and the remainder, we think is clear; and there is ho rule of law which 34 will be contravened by carrying out this intention. It is not essential to such, a trust that the legal title should be vested in tbe trustee further than is involved in the execution of his powers. Headen v. Quillian, 92 Ga. 220; Henderson v. Williams, 97 Ga. 709. The nature of the remainder is therefore of no consequence; nor does it matter whether, under the act of 1866, the legal title to the life-estate vested in the life-tenant. The property conveyed was a large tract of unproductive land in a city. The purpose of the grantor was to make a suitable provision for the support of bis wife and childreln, 'and that tbe property shionld be made to produce income. It w’as provided that the wife should receive from it at least $100 per month above “all taxes, insurance and repairs”; and in order to accomplish this the trustee was authorized to mortgage or sell the property. It was provided that, unless restricted as thereinafter mentioned, the trustee, “for th’e purpose of managing said trust estate and Changing 'the investment thereof, is hereby authorized at any time, by instrument in writing in which said Sarah R. Bailie joins during her life, and without her j oining after her death, to pledge, mortgage; sell or exchange or Otherwise dispose of all or any portion of the real estate and personal property as he may deem best,” and “from time to time to change the investments whenever and as often as he may deem it advisable.” It will be seen from this that -the trust was to continue after tbe death of the life-tenant. It is evident also that the grantor contemplated that he should be the trustee himself. It was provided that the trustee might resign -at any time be so desired, and that Mrs. Bailie might ¡by instrument in writing appoint her husband, tbe grantor, or any other fit and proper person as trustee; and as we have seen, immediately upon the execution of the deed the trustee named therein resigned, and the grantor wlas appointed in his stead, with all the powers conferred upon the original trustee. The powers conferred by the deed are about as 35 broad as it is possible to confer upon a trustee; and we think there clan be no doubt that the grantor intended that he .■should have full power to borrow money upon the property .in the way he did, and for the purpose for which that money was borrowed. The rule ita. a case like this is that a trustee is invested w-iith sufficient power to execute the trust; and in •order to determine the power of the trustee the courts will look to th!e character of the trust estate. Miller v. Redwine, 75 Ga. 133. Taking into consideration the nature •of the property in question, it was clearly necessary, in order to carry out the intention of the grantor, that the power to' 'borrow mtoney for the improvement of the property should •exist. "We are not prepared to bold that the power was uot well exercised because the money was borrowed from a building and loan association, and a subscription to stock ■of the association made for that purpose. This is the usual mode of obtaining loans from such 'associations; and a similar transaction by the trustee was upheld by this court in •.the case of Harvey v. Cubbedge, 75 Ga. 793. Judgment affirmed.