Riggins v. Adair & McCarty Bros.

Simmons, C. J. 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, the730 ^property'ofAhe trust estate-was bound by the judgment against it on the. suit’.by persons who had furnished fertilizers for the ruse of Alie tru-st estate. Section 3202 of the Civil Code recognizes the; liability of a trust estate “for articles .or property or 3 money'furnished for the use of said estate,” and the judgment •• above mentioned was obtained in accordance with that and the following section, the declaration containing allegations showing that the debt sued upon was binding upon the estate. If the trust was executory, the trust estate and the cestuis que ■trust were,,therefore, bound by the judgment. Clark v. Flannery & Co., 99 Ga. 239. 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, [731] lie having at the time no issue. In each one of the cases above mentioned, the devise or conveyance was so made, showing no intention that the children should take as remaindermen, the .gift being immediate. Here, however, the estate of the daughter is expressly limited to a life-estate, and at her death the property is to be divided among her children or among the heirs at law of the grantor. The property is given for the sole and ¡separate use of the daughter during natural life, and until after her death the children can take no interest under the deed. The estate is to the daughter “ free from all and every liability of her husband only as contracted on account of the maintenance, support and comfort of the [daughter] and her children,” but this gives the children no interest at all. Whatever interest they may get under the deed is postponed until after the death ■of their mother. The cases cited have therefore no application to the present case. Erom the language of the instrument itself it seems to us clear that the daughter was to receive only a life-estate, with remainder over to her- children, if any survived her; while if, at the time of her death and the consequent termination of the life-estate, she left no surviving children, then the property was to be divided equally among the heirs of the .grantor. The trust was therefore not executed by the act of 1866, for “something remain [ed] to be done by the trustee, either to secure the property, to ascertain the objects of the trust, or to distribute according to a specified mode,” and the trust was still executory. Civil Code, §3156. 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, [732] 92 Ga. 772, where it was held that where the “fee is carved up into an estate for life in favor of one beneficiary and a remainder in behalf of other beneficiaries, who are uncertain and unascertained, . . the title as to the remainder should be considered as abiding in him [the trustee] so long, at least, as the identical persons who are to take and enjoy it are not ascertainable.. Up to that time, the trust is executory, and the remainder is am equitable, not a legal, estate. . . That a trust in remainder-will become executed on the happening of a certain event, such as the death of a tenant for life, does not involve, as a presupposition, that the trustee has no title to the remainder, but the-contrary; for the passing of the legal title out of the trustee into-the beneficiaries is what executes and terminates the trust.” In. the present case it is impossible, before the death of the life-tenant, to ascertain who will be the remaindermen. They maybe the children of Mrs. Riggins, surviving her, or they may be-the heirs at law of the grantor; and in either event it would, seem, under the deed, that the trustee is “to have and to hold” the property to be equally divided. So long as the life-tenant survives, the trustee has still to hold and secure the property and its increase, to ascertain the objects of the trust, and to distribute it according to the mode provided in the deed. While these things are to be done, the trust is not executed. Cabot v. Armstrong, 100 Ga. 438. 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. All the Justices concurring., except Lumplcin, P. J., absent.