Wadley v. Jones

Hill, J. (After stating the foregoing facts.) The crucial question in this case is, did the power conferred by the trust deed on the first trustee to sell the fee-simple estate in the lands in controversy survive to the second trustee. It is insisted by the defendants in error that the power of sale conferred upon the first trustee was a personal trust and did not pass to his successor. But to this contention we do not agree. We shall endeavor to demonstrate from the recitals contained in the trust deed that the power of sale conferred upon the first trustee survived to the second trustee. In the marriage settlement of 1854 the husband ivas waiving his marital rights, by which prior to the act of 1866 the title to the land would vest in him as the husband upon his reducing it to possession. He therefore executed a postnuptial contract whereby he conveyed all the property, real and personal, of which he was possessed from his wife, “unto the trustees hereinafter to be nominated and appointed.” The word “trustees” in the above quotation is used in the record both in the plural and singular number. In the exhibit attached to the petition it is used in the singular, “trustee,” but in the brief of the evidence, which contains what also purports to be a copy of the trust deed, the plural noun, “trustees,” is employed. Which is correct we are unable to say from the record. If the maker of the instrument used the word “trustees,” [227] it is an added argument to the effect that he intended the powers to survive to the second trustee, who was to be appointed in case of the death of the first. If the word “trustee” was used, it would still not affect the conclusions here reached; for we think that what follows makes it manifest that the intention of the maker was that the power of sale conferred on the first trustee should survive to the second. And we are holding that it was the intention of the maker, as expressed in the instrument itself, which must control. See Freeman v. Prendergast, 94 Ga. 369 (2), 389 (21 S. E. 837). The settlor provides that the sum of $8,000 shall be vested in land, negroes, or stock, or in such other property “as the said Augustus H. Anderson and his said wife Susan shall consent and agree upon,” etc. It is also stipulated that “the said Augustus H. Anderson shall have the possession, custody, an,d control of the aforesaid property, and that the artificial increase or proceeds shall be appropriated in so far as may be necessary to the support and maintenance of the said Augustus H. and the said Susan J. Anderson and of their family.” It is further provided that any of the property “now in possession or hereafter to be purchased may, upon the written consent of the aforesaid Augustus H. and Susan J. Anderson, be aliened, sold, and conveyed; but it is expressly required that the proceeds of such sale or sales shall be reinvested in such other property as the parties hereinbefore named shall require,” etc. “It is further covenanted, stipulated, and agreed upon, that William J. Ehodes be and he is hereby appointed trustee for the purpose of carrying out the provisions of this indenture; and it is further understood, covenanted, and declared that in the event of the trusteeship so as aforesaid becoming vacant by death or resignation or any other cause, that the said Augustus H. and Susan J. Anderson, or, in the event of the [death of] one of them, the survivor of them, shall have full power and authority to appoint, by this [their?] writing under seal, such person as trustee as they may deem advisable and proper.” It seems clear from reading these provisions of the trust deed that the maker intended to reserve to himself and wife, or, in case of the death of either, to the survivor, the right to name the “trustees,” and also the right to have the trustee, only upon the written consent of the beneficiaries, or either of them in case of the death of the other, alien, sell, and convey any of the property [228] “now in possession, or hereafter to be purchased.” The power to sell was clearly intended to be in the trustee as such, with the written consent of the beneficiaries, and not in any particular trustee. It was not a “personal trust,” to be executed by one particular trustee only, but it was the clear intent to vest the power to sell in the trustee, whoever he might be, under the appointment of the settlor and his wife, or either of them on the death of the other. And herein lies the distinction between the present case and that of Luquire v. Lee, 121 Ga. 624 (49 S. E. 834), cited by the defendant in 'error. In that case the court held, under its facts, “that the power in the deed was not incident to the office of trustee, but personal to the trustee.” The decision indicates a discretionary power in the trustee; but it is also said that “the grantor, if she wished to deprive the trustee of any discretion as to the sale and reinvestment, could very well have made it his duty to sell and reinvest at the will of Mr. and Mrs. Lee, thus constituting the trustee the mere conduit of passing the legal title. Id. p. 629. In the present case the land “may” be sold, but the discretion is reserved in the settlor and his wife, or the survivor in the event of. the death of the other, and if it is sold, it “shall be reinvested,” not as the trustee may say, but “as the parties hereinbefore named [the settlor and his wife] shall require.” Here the discretion is reserved by the trust deed in the grantor and the other cestui que trust, and the trustee can not act except upon the written consent of the former. The trustee can not exercise his discretion independently of the maker of the trust deed and his wife. The discretion was not in the trustee, but in both the trustee and them. This case differs from the ordinary ease of the appointment of a trustee for others. Here a man was creating a trust and naming a trustee for himself and wife, with the power reserved in them to appoint a successor to the first trustee in case of his death, with like powers in and limitations on the second trustee. They could hardly be supposed to be lacking in confidence in themselves. They appointed the first trustee. If he died, they were to appoint his successor. He was not to be appointed by a court, or by any one other than themselves. They retained possession of the property. Reinvestment was to be made only by their consent The trust property was not to be sold at the discretion of the trustee alone, but with the consent of the husband and wife, or the survivor. [229] Again we ask, did the power of sale provided by the trust deed survive to the successor of the first trustee? It seems clear from a careful reading of the. trust deed that the maker intended the second trustee should have the same powers as the first. It would be strange indeed if the makers of the trust deed should appoint the first trustee with certain powers, reserve the right to appoint the second trustee, and then confer on the second trustee powers different from those conferred on the first trustee. The creator of the trust intended that both trustees should have the same powers. The power to convey attached to the office of trustee, and not to the individual; and this intent of the makers appears from the trust deed itself. In view of all the various indicia on the face of the trust deed, we hold that the powers conferred on the first trustee were intended to and did survive to the second trustee as such; and this being so, it follows that when the second trustee, with the written consent of the surviving cestui que trust, sold and conveyed the fee-simple title to the land in controversy, the purchaser obtained a fee-simple title thereto, and on the death of both cestuis que trust their children have no interest in the lands thus conveyed. The court below, therefore, erred in overruling the motion for a new trial. Judgment reversed. All the Justices concur.