Opinion
17703.
ARGUED JANUARY 14, 1952.
DECIDED FEBRUARY 12, 1952. REHEARING DENIED MARCH 13, 1952.
Construction of will. Before Judge G. C. Anderson. Richmond Superior Court. September 18, 1951.
Peebles Burnside, John L. Bussey, in propria persona, and G. Seals Aikens, for plaintiff.
C. Wesley Killebrew and Carl E. Sanders, for defendants.
1. Under the provisions of the instant will, the executors were not trustees for the remaindermen at the time of the institution of the present proceedings.
2. By the terms of the will a fee-simple estate is now vested in the remaindermen, and an attempted curtailment of their right of alienation is ineffective, as being repugnant to the estate granted.
No. 17703. ARGUED JANUARY 14, 1952 — DECIDED FEBRUARY 12, 1952 — REHEARING DENIED MARCH 13, 1952.
This is a suit by John L. Bussey against his brother Warren W. Bussey and his sister Virginia Lois Bussey, individually and as executors of his father's will, and also against his sister Pearl Bussey Phinney, and Virginia Wilkins, a daughter of a deceased sister who survived the life tenant. On motion three adult children of the plaintiff were also made parties defendant.
The dispute grew out of the construction of the will of their father and grandfather, W. W. Bussey, who died in 1928. The parts of the will essential to a determination of the questions here involved are as follows: Item 2. "I give, devise and bequeath to my wife, Virginia Lois Bussey, all my property of every kind or character, and wherever located, for and during the term of her natural life, she to use the income as she sees fit, with remainder over as set forth in item six (6) of this will. This devise to my said wife to be in lieu of dower, year's support, or other interest in my estate." Item 6. "I give, devise and bequeath to my five (5) children the remainder interest in my estate, and, at the death of my said wife, I direct that all of my estate, except my property at No. 908 Broad Street, Augusta, Ga., be equally divided among them, to wit: Pearl Bussey Phinney; Sadie Bussey Wilkins, John L. Bussey, Virginia Lois Bussey (Dolly Bussey) and Warren W. Bussey, Jr. After the death of my wife, I desire that my executors and executrix, hereinafter named and appointed, do each month divide the net rent received from No. 908 Broad Street, Augusta, Ga., among my children as above set forth, and that, after (10) years from the death of my said wife, they shall have the right and authority to sell the same, with the consent of then living children, and divide the proceeds among my five (5) children. In the event any of my children predecease my wife, I direct that his or her or their share be paid to their child or children, if any, the children of the deceased child or children taking per stripes and not per capita. In the event any of my children die before my wife, leaving no child or children, then his or her share is to revert back to my estate, and be divided equally among the other living children, or representatives of children, but, in no event shall any other than a blood relative inherit under any provision of this will." Item 8. "I hereby confer on my executors and executrix, or the survivor or survivors, full power and authority to sell, at any time, any part of my estate, other than the property No. 908 Broad Street, Augusta, Ga., at public or private sale, with or without notice, as they deem best, and without order of any court, making good and sufficient conveyance or transfers to the purchaser or purchasers, and holding the proceeds of such sales to the same uses and trusts as hereinbefore declared in the several items of this will, the purchaser or purchasers being expressly relieved from seeing to the application of the purchase money." Item 9. "I desire that my executrix and executors do not sell property No. 908 Broad Street, Augusta, Ga., until ten (10) years after the death of my wife, at which time I confer on my executors and executrix, or the survivor or survivors of them, full power and authority, with the consent of my children then in life, to sell No. 908 Broad Street, Augusta, Ga., at public or private sale, with or without notice as they deem best, and without any order of court, making good and sufficient conveyances to the purchaser or purchasers, and holding the proceeds of such sale in the same uses and trusts as hereinabove set out, the purchaser not being required to see to the proper application of the purchase money."
W. W. Bussey Jr., Virginia Lois Bussey, and Citizens Southern Bank were nominated as executors, but the bank declined to qualify.
The widow died in May, 1937. On August 22, 1950, the executors by deed of assent conveyed the realty known as 908 Broad Street to the then living children of the grantor and a daughter of a deceased child, and in the same instrument conveyed the interest in a five-year lease to H. L. Green Co. Inc., which had been granted by the executors commencing October 1, 1946. From the death of the widow until the execution of the above deed of assent the executors had collected the income, and after deducting expenses, distributed the funds as provided in the will. After the execution of the above deed the executors filed a formal return and a petition for discharge, which is still pending in the court of ordinary.
It was alleged by the petitioners that the executors could not divest themselves of the duty of holding the realty, and collecting and distributing the income; that the purported deed of assent was executed by them without authority; and that they were not entitled to be discharged by the court of ordinary from their trust.
Among others the prayers were for a construction of the will, that the executors be enjoined from proceeding further with an application for discharge, and that the deed of assent be canceled. There were other allegations and prayers which are not essential to a determination of the case.
After a hearing the trial judge rendered a decree holding that the provision of the will, prohibiting alienation of the property known as 908 Broad Street, after the expiration of ten years from the death of the widow, without the consent of all of his children then in life, was repugnant to the estate granted and therefore contrary to public policy, and that such restriction was void and of no effect, and further decreed that the four children, and grandchild Virginia Wilkins, were each the owners of a one-fifth interest in the property as tenants in common free from any restriction as to alienation. Exception is to this decree.
1. The controlling question here is whether or not the four children and grandchild of the testator took a fee-simple estate in the property at 908 Broad Street, at the expiration of ten years following the death of the widow, who was a life tenant.
It is the contention of the plaintiff that the provision in the will, that, at the expiration of 10 years after the death of the wife, the executors shall have the right and authority to sell the same, with the consent of then living children, with the additional provision that they hold the proceeds of the sale to the same uses and trusts as set out, would prevent the vesting of the estate in remainder to the children and grandchild, create the executors as trustees of the property, which could not be sold without the consent of all the children, and if so sold, the proceeds would still be held by the executors as trustees, and the income therefrom be distributed as was done during the ten-year period following the death of the widow. To so construe the will would, in effect, create the executors as trustees for the children and grandchild, all of whom had obtained their majority and were laboring under no disability when the life tenant died. The will must be construed under the law as it existed at the time of the death of the testator. Hertz v. Abrahams, 110 Ga. 707 (2) ( 36 S.E. 409). When this testator died in 1928, there was no provision for the creation of such a trust except for a person under disability. Code, § 108-114. Another obstacle in the path of such a construction is the absence of an intention to convey some estate or interest in the property to the executors as trustees. See 65 C. J. 308. Then too the question of the duration and termination of the trust is encountered; and if it be assumed that the executors became trustees of this property, then there is no provision for the termination of their duties as trustees, or for a final vesting, and to whom, of a complete ownership so as to avoid a perpetuity under Code § 85-707. Accordingly, even if a trust was attempted to be created, it was lacking in too many essential elements to constitute a valid trust.
2. Under the terms of the will, the remainder interest in this property was to vest in the children, or children, of deceased children at the death of the widow. The ten-year period following the death of the widow, during which time the executors were to divide the income between the above parties, having expired, no question as to their respective rights during this period is now involved. The intention of the testator is clear that at this time the remaindermen shall have a fee-simple title to the property. The provision of the will, where at the expiration of the ten-year period the executors are given the right to sell the property with the consent of the then living children, cannot be given effect so as to curtail the rights incident to a fee-simple estate. At the expiration of the ten-year period, each of the children or children of deceased children became the absolute owners of an undivided interest in the property, with the right to sell their respective interests. "No one can create what is in intendment of the law an estate in fee simple and at the same time deprive the owner of those rights and privileges which the law annexes to it." Wright v. Hill, 140 Ga. 554, 567 ( 79 S.E. 546). An expressed devise cannot be cut down by a subsequent item of doubtful meaning. Sumpter v. Carter, 115 Ga. 893 ( 42 S.E. 324); Moore v. Cook, 153 Ga. 840 ( 113 S.E. 526); Nicholls v. Wheeler, 182 Ga. 502 ( 185 S.E. 800).
Judgment affirmed. All the Justices concur.