Coleman v. Cabaniss

Cobb, J. Even though the trust deed vested in the trustee the legal title to only the life-estate of Mrs. Coleman, still the power of sale extended to the fee in remainder as well as the life-estate. The expression “ trust property,” which is used in describing the power of sale, is not to be given a technical meaning which would confine it to the life-estate, if the trust estate created was limited [284] to that estate. The trust property referred to is the fee in the property. As was remarked . by Mr. Chief Justice Bleckley, in Headen v. Quillian, 92 Ga. 223, “To hold that he contemplated restricting the power of sale to' the estate for life would attribute to him a technical narrowness utterly strange to his thoughts and at complete variance with his real state of mind.” See also Heath v. Miller, 117 Ga. 857, and cit. So far as the right to exercise the power of sale is concerned, it is immaterial to what •class the remainders belong — whether-legal or equitable, vested ■or contingent. The original trustee and his wife, by their joint action, were authorized to convey the fee in the property for the purpose of reinvesting the proceeds in other property. ‘ See Heath v. Miller, supra. A lawful sale of the fee in the property could be had at any time during the lifetime of Mrs. Coleman, whenever. she and the original trustee saw fit to unite in exercising the power. But it is said that the power of sale was extinguished when the original trustee died, that it was not conferred in terms Upon him and his successors, and that there is no language in the deed which, properly construed, would pass to the new trustee a power of sale, although there is express authority vested in Mrs. Coleman to appoint a new trustee. Neither the word “successor ” nor words of similar import appearing in the clause of the deed conferring the power of sale upon the original trustee have this effect, and unless there is some other language in the deed which would indicate that it was the intention of the grantor that this power should pass to the successor for whose appointment provision is made, the power would be a personal trust and would not pass. Simmons v. McKinlock, 98 Ga. 738. But the deed expressly provides that the successor to the original trustee, when appointed in the manner provided, should take the estate “ subject to the same uses, limitations, and trusts as are hereinbefore expressed.” The power of sale may not be a use or limitation, but it is certainly a trust. As was said in Heath v. Miller, “ The ’■trustee, although a trustee of a power merely, is none the less a trustee.” Under this view of the matter, the power of sale passes to the successor by the very terms of the deed itself. The fact that the deed provides that the power to create a lien shall not pass to the new trustee is a strong circumstance to indicate that it was the intention of the grantor that the power of sale should [285] pass. The deed tendered to Cabaniss conveyed a perfect title to the fee in t¿be property as against any one who might be a claimant under the trust deed. Whatever interest the children and grandchildren have in the property will pass under the deed and will attach to the property in which the reinvestment is made. Judgment reversed. All the Justices concur.