Thompson v. Hale

Evans, J. (After stating the facts.) 1-3. It is reasonable to assume that at the time of the execution of the deed from Barrow to the trustees of the Smithville Academy and to the officers of the masonic lodge, the Smithville Academy had a potential existence and its affairs were administered by a board of trustees. The grant, therefore, was to the board of trustees then existing and to their successors in office. Conceding that the deed did not create the trust, but merely put the legal title of the property conveyed into the trustees and their successors, it does not follow that the trustees possessed the power to fill vacancies occurring in their board. A trust of this character can not be created otherwise than by grant or by legislative authority. It can not be created by grant unless property is conveyed. The legislature has the power to incorporate an academy and to authorize certain persons to act as trustees, and the act' of incorporation may further provide for the filling of vacancies in the board of trustees; the courts will take notice of such legislative acts. But as the Gen [310] eral Assembly has not incorporated the Smithville Academy or empowered any board of trustees to manage it and take charge of its affairs, and as no grant is shown, it would seem that there is no lawful authority for the trustees to name their successors or to fill vacancies occurring within the board. If we should construe this deed as creating a trust, the trustees at the time of the execution of the deed had no power to fill vacancies, the deed conferring no such power of appointment. We therefore conclude that as the legal title to the property was vested in the trustees filling the office at the time of the delivery of the deed, no power of appointing successors having been provided thereby, and there being no legislative authority authorizing the control and management of the academy by the trustees, the burden was shifted upon the defendants to • show the legality of their existence as a board of trustees with authority to manage the affairs of the school. This was not done. The evidence covered' only, a period extending back twenty or twenty-two years, during which time it had been the custom of the board to fill the vacancies. This is insufficient to show authority in th'e present trustees either to hold title under the donor’s deed, or to manage the school affairs of that particular locality. The deed from Barrow was to the trustees of the Smithville Academy and their successors, and to certain officers of the Austin Lodge F. & A. M., and their successors, for the purpose of education and masonry, and also for a church, “if ever built.” There was a provision in the deed that when the premises ceased to be used for church, school, or lodge purposes the land would revert to the grantor and his heirs. It is clear that the grantor intended that the persons holding the office of trustees of the academy, and the officers of the lodge should hold the property, not for their own individual benefit, but for school and masonic uses. The designation of the trustees by their official character is equivalent to naming them by their proper names. Inglis v. Sailors Snug Harbor, 3 Pet. 114. When the trustees died the title did not descend to their heirs; nor was there a reversion of the land to the grantor or his estate, so long as the premises are used for the purposes specified. The petition alleges that the masonic lodge had abandoned all interest they might claim under the deed, but the land is still used for school purposes. The case made is that of a charitable or elfee [311] mosynary trust without a trustee; and in such cases it is within the power of the superior court to nominate a trustee or trustees to hold the property for the uses declared in the donor’s deed. Civil Code, §§4008, 4009.; Beall v. Fox, 4 Ga. 404. The beneficiaries under the deed are not the trustees, but all the persons living in the locality of the school who might avail themselves of its educational advantages and opportunities. As the deed did not confer the power of appointment, and the original trustees are no longer in existence, the power of appointing trustees vests in the superior court exercising equitable jurisdiction. This power of appointment may be exercised by the chancellor upon the petition of the beneficiaries of the trust. Civil Code, §§ 3178, 3195, 3197, and 3199. The chancellor exercised this power in the present case, and, we think, properly so, under the facts as they appear in the record. Judgment affirmed. All the Justices concur, except Simmons, C. J., absent.