Cunningham v. Calhoun

Atkinson, J. The assignment of error calls for the construction of the antenuptial agreement set forth in the statement of facts, and raises the question: Was John Cunningham trustee alone for the life-tenant, or was he trustee for both the .life-tenant and the remaindermen ? Nothing else is for decision. The instrument is in the form of a deed. “Every conveyance, properly executed, shall-be construed to convey the fee, unless a less estate is mentioned and limited in such conveyance.” Civil Code of 1895, § 3083. The property conveyed by the deed was the separate prop [718] erty of the intended wife, which she had received as her share of her father’s estate. She was about to assume the marital relation, whereby her real property, under the law as it then existed, before the married woman’s act of 1866, might become absolutely the property of the intended husband by being reduced to his .actual possession. To avoid that possible result, and to save the property for herself and any children which might in future be. born as the issue of the marriage, was the express purpose which induced her to make the deed and the intended husband to accept it. It is clear, therefore, that her intention was to divest herself of the entire legal title. She reserved nothing to herself except an equitable life-estate; all other estate was conveyed to the intended husband. None of it was intended for his own use. This is the necessary inference from the express terms of the deed. How, then, did he, as grantee of the property, hold the other interests in it ? It was recited that he was to “have and to hold” it on the “trusts and uses following, to say,” thus indicating a plurality of trusts. One related to the life-estate reserved to the grantor; the other could only refer to the estate in remainder. Owing to the time at which the deed was made, and the law existing before the passage of the married woman’s act of 1866, and the fact that the life-tenant was the grantor who sought to convey away all title in herself, except an equitable life-estate which she desired to reserve, and the fact that language was employed indicating a plurality of uses, we think the instrument, construed as a whole; reflects an intention to extend the trust to the remainder, and not restrict it merely to the life-estate. What is said also distinguishes the case from other cases on the subject heretofore decided by this court, in the great majority of which it has been held that the trustee was trustee for the life-estate only. Vernoy v. Robinson, 133 Ga. 653-61 (66 S. E. 928), and citations. It is unnecessary to discuss these eases further than to-say that in no instance was it held that the trustee did not represent the remainder estate in a case where the instrument creating the trust expressly, or by necessary implication, provided that he should be trustee for the remainder estate. Upon this construction of the antenuptial indenture the judge properly sustained the demurrer to the petition. Judgment affirmed. All the Justices concur.