McBride v. Bullard

Sell, Justice. 1. Tie trustee named in the deed on which the plaintiffs rely.was not trustee for the life-tenant only, but was trustee “for the life-tenant and remaindermen, and the trust was executory at least until the death of the life-tenant, when the possibility of her having children would become extinct, and it could be ascertained to whom the estate would ultimately go. Ford v. Cook, 73 Ga. 215; Dean v. Central Cotton Press Co., 64 Ga. 670; In re Dougan, 139 Ga. 351 (77 S. E. 158, 48 L. R. A. (N. S.) 868, Ann. Cas. 1914B, 868).” Watts v. Boothe, 148 Ga. 376 (96 S. E. 863). See also Woodbery v. Atlas Realty Co., 148 Ga. 712 (98 S. E. 472); Duncan v. Verner, 172 Ga. [355] 553 (158 S. E. 322); Reynolds v. Smith, 186 Ga. 838, 841 (199 S. E. 137); Code, § 108-111. No. 12740. June 17, 1939. 2. The application for leave to sell, considered in connection with the deed attached as an exhibit to the application, appears to have been made on behalf of the applicant as trustee for the entire estate. Attached to the application as an exhibit was a copy of the deed from Mary E. Newton to Willis Newton, and the applicant alleged, that “petitioner can use said money to the better advantage for the trust estate than the property.” (Italics ours.) : 3; The statement in the application for leave to sell, that the deed created . an “executed” trust, was evidently a mere glerical error, the facts showing that the trust was executory. 4. The plaintiffs being mere contingent beneficiaries of the trust estate, it was unnecessary that they be made parties' to the application of the trustee for leave to sell the property in question, or that they be represented otherwise than by the trustee. Schley v. Brown, 70 Ga. 64 (4). In this respect the present case is distinguished by its facts from Hill v. Printup, 48 Ga. 453. 5. Under the foregoing rulings, the court did not err in admitting in evidence in behalf of the defendants the deed from Willis Newton, trustee, to Mrs. H. S. Gould, over the objection that under the deed from Mary E. Newton to Willis Newton, trustee, the latter had no authority to convey the fee-simple title to the land, and that the judge ■ of the superior court had no authority to grant permission to the trustee to dispose of- the fee. 6. Under the pleadings and the evidence, a verdict for the defendants was demanded. The court did not err in directing the jury accordingly, or in overruling the plaintiffs’ motion for new trial. Judgment affirmed. All the Justices concur. Sydney II. Baynes, for plaintiffs. ■ Warren & Warren and W. II. Key, for defendants.