Bonnell v. Bargeron

Hines, J. The real question in this case is, whether the above deed put the legal title in the trustee to the estate granted to the children of Lydia Bailey, “in fee simple absolute,” upon her death and in default of the exercise of the power of appointment given her in said instrument; or was the legal title to this land put in the trustee only for and during the life of the said Lydia? It will be noted that this instrument does not convey this land to the grantee in trust for his wife during 'her life, but only gives her the net rents and income thereof after the payment for repairs and of taxes and assessments. In other words, she was only given an interest in a portion of the usufruct of this land. The habendum clause is “unto the said John C. Bonnell,” but “in trust and to and for the several uses,, intents, and purposes” mentioned thereafter in this instrument. The first purpose is to lease this land, collect the rents, and out of the same to keep the premises, in good order and repair, and to pay all taxes, assessments and charges that may be imposed thereon. The second purpose is to [807] pay the residue of the rents to the said Lydia Bonnell “during the term of her natural life.” The third purpose is, to convey said land to such person or persons as the said Lydia might by her last will appoint, and in default of such appointment said land was to belong to her children “in fee simple absolute.” One-of the purposes of this conveyance was to give to the children of Lydia upon her death this land in fee simple. The trustee was to hold this land “to and for the several uses, intents, and purposes” mentioned in this deed. One of these purposes was that the land should belong to the children of Lydia after her death, and in default of the exercise of the power of appointment conferred upon her by this instrument. Clearly, one of the purposes of the conveyance was that this land should go to the children of the grantee’s wife, under the circumstances above mentioned. So, the grantee was trustee; not only for the interest granted the wife in this land, but for the contingent estate in remainder for her children. Sparks v. Anderson, 150 Ga. 58 (102 S. E. 423); Sparks v. Ridley, 150 Ga. 210 (103 S. E. 425). The legal title to the land being in the trustee both as to the wife and her children, and the defendant and those under whom he claimed having been in adverse possession of this land under color of title for more than the prescriptive period prior to the death of the wife, as appears from the petition in this case, the court did not err in sustaining an oral motion to dismiss the petition and in dismissing the case. Watts v. Boothe, 148 Ga. 376 (96 S. E. 863); Sparks v. Anderson, supra. Judgment affirmed. All the Justices concur, except Hill and Gilbert, JJ., who dissent.