Opinion
17509.
ARGUED JUNE 12, 1951.
DECIDED JULY 10, 1951. REHEARING DENIED JULY 24, 1951.
Equitable petition. Before Judge Humphrey. Washington Superior Court. April 20, 1951.
W. C. McMillan and Erwin Sibley, for plaintiff in error.
E. W. Jordan and E. T. Averett, contra.
The trial court did not err in overruling the "objections and demurrers" to the petition of the trustees.
No. 17509. ARGUED JUNE 12, 1951 — DECIDED JULY 10, 1951 — REHEARING DENIED JULY 24, 1951.
The petition of Mrs. Winifred R. Gilmore and E. W. Jordan to the Judge of the Superior Court of Washington County (in so far as material in this case) alleged in substance: Thomas W. Gilmore died March 13, 1946, and at the time of his death was acting as executor and trustee under the will of John D. Gilmore, deceased. Under item two of the will of Thomas W. Gilmore, the petitioners were appointed (and have accepted the appointment) to act as trustees under the will of John D. Gilmore. Thomas W. Gilmore Jr., a minor, 20 years of age, is the owner of the entire estate of John D. Gilmore under his will, subject to a charge of $225 per month, plus expenses of last sickness and funeral expenses, in favor of Mrs. Polly S. Gilmore, the widow of John D. Gilmore. The petitioners deem it to the advantage of the trust estate to sell all the timber measuring ten inches in diameter twelve inches above the ground upon described land. Mrs. Winifred R. Gilmore owns an estate for the life of Mrs. Geo. W. Gilmore in the described land, and the remainder interest is owned by the estate of John D. Gilmore. The petitioners have an offer of $67,000 cash for the timber on the lands described. They desire to sell the timber and convey to the purchaser necessary powers to cut and remove the timber within a period of two years; the proceeds from the sale to be invested in bonds of the United States, or as the court may direct. If the larger timber, having reached maturity, is removed from the land, it will accelerate the growth of the younger trees, to the advantage of interested parties. The price of timber is at an all-time high and there is uncertainty as to future prices. A copy of the will of John D. Gilmore was attached to the petition as an exhibit.
The prayers were: for authority to sell the timber at private sale for a price of not less than $67,000; that the proceeds of the sale be invested as directed by the court; for the appointment of a guardian ad litem to represent the minor; and that a rule nisi be issued requiring Thomas W. Gilmore Jr. and Mrs. Polly S. Gilmore to show cause why the timber should not be sold under order of the court for the consideration named; and for further relief.
The judge of the superior court ordered that a copy of the application for leave to sell and his order be served upon Thomas W. Gilmore Jr. and Mrs. Polly S. Gilmore on or before a stated date; that a named person be appointed as guardian ad litem for Thomas W. Gilmore Jr.; and that the parties show cause at a stated time and place why the prayers of the petition should not be granted. The guardian ad litem appointed for Thomas W. Gilmore Jr. duly filed his acceptance of the appointment in writing.
Mrs. Polly S. Gilmore filed her "objections and demurrers" as follows: (1) The petitioners show no right in law or equity to the relief sought. (2) The petitioners as trustees hold the remainder interest in the timber and land as an investment of the estate of John D. Gilmore, deceased, and they show no authority for separating the timber from the land and retaining the latter as an investment. (3) The petition does not sufficiently disclose the kinds, quantities, and several values of the timber. (4) The petition seeks to reduce in value a trust estate in which the defendant is beneficiary and she is interested under the law in a public sale of the entire property, the timber and the land, after proper cruising of the timber, and after public advertisement. The petition does not allege sufficient facts to authorize a private sale.
Mrs. Gilmore's objections and demurrers were overruled, and the exception is to that judgment.
The petition alleges that the applicants were appointed to act as trustees, that they accepted the trust, and have acted as trustees of the estate of John D. Gilmore since the death of Thomas W. Gilmore. A trustee may be named by will. Code, § 108-114. A demurrer admits all properly pleaded allegations in a petition, and they must be considered as true in passing upon the demurrer. Code, § 81-304; City of Albany v. Lippitt, 191 Ga. 756 ( 13 S.E.2d 807). The contention that the petitioners do not show any "right in law or equity to the relief prayed" does not raise any question as to the appointment and qualification of the petitioners as trustees of the estate of John D. Gilmore. The demurrer admits that the petitioners are such trustees.
The Code, §§ 37-1301, 37-1303, 37-1304, and 108-408, fully directs the manner and procedure to be followed for sales of property belonging to trust estates. In the present case the trustees have followed the rules of law governing applications for leave to sell trust property. Interested parties were served and a guardian ad litem was appointed for the minor beneficiary, and the guardian ad litem accepted the appointment in writing.
There is no merit in the contention that the land and timber must be sold together. The petitioners were not required to allege the various kinds and quantities of timber. This was a matter of evidence and a question for investigation by the trial judge. Whether or not a private sale of the property should be had would depend on the evidence before the court. Pease v. Wagnon, 93 Ga. 361 ( 20 S.E. 637); Reinhart v. Blackshear, 105 Ga. 799 ( 31 S.E. 748).
The construction of the will of John D. Gilmore was not before the trial court, and no order construing the will was entered: The request of counsel for the plaintiff in error (appearing only in the briefs of counsel) for a construction of such will by this court must be denied. Other questions not made by the "objections and demurrers" of the plaintiff in error, but presented for the first time in the briefs of her counsel, can not be considered.
Judgment affirmed. All the Justices concur.