Duckworth v. Ocean Steamship Co.

26 S.E. 736, 98 Ga. 193

• Court: Supreme Court of Georgia
• Decided: March 16, 1896
• Status: Published

Opinion

Atkinson, Justice.

Tbe plaintiffs sued in tbeir capacity as trustees under tbe will of William Battersby. Tbe testator resided in England. By bis will be named certain persons resident-in England, and certain persons resident in tbis State, as executors and trustees to bold tbe property and dispose of it in accordance with tbe directions contained in tbe will. He-does not appear to have distinguished between those duties which were appropriate to be performed by tbe persons as executors, or those which might bave been appropriately performed as trustees of any property which may have remained in their hands in that capacity after it had been disposed of by them as executors. By the 5th, 6th and 7th items of the will, he makes bequests of certain specific legacies, and directs that they be paid to the trustees. He directs, by the 10th item of his will, that the trustees shall, out of moneys to be produced by the sale provided for by the 9th item of the will, pay or provide for the payment of his funeral and testamentary expenses, and debts, and the legacies and annuities given by the will, and thereafter shall stand possessed of the residue of the money in trust, etc. In referring to the persons named, he speaks of them as executors and trustees indifferently. He disposes of a considerable amount of property, some of it being in Great Britain, some of it in the United States. In conferring powers and imposing duties upon the persons named as trustees and executors, he seems to have classified them, assigning to those resident in this country the duty of executing the trust created by the will as to the property located here, and assigning to those resident abroad the duty of likewise disposing of the property situated there; and to that end, in the 24th item of his will, he declares as follows: “And I declare that my trustees resident in England may leave to my trustees or trustee for the time being resident in America the entire management of the aforesaid trusts, and the entire execution of the aforesaid powers, except the power of apportionment and allotment, so far as they respectively are, from the situation of the property or for any other reason, to be performed in America, and that my trustees or trustee for the time being resident in America may leave to my trustees or trustee for the time being resident in England the entire management of the aforesaid trusts and the entire execution of the aforesaid powers, ■except as aforesaid, so far as they are, from the situation of the property or for any other reason, to be performed in England; it being my desire that such trustees or trustee respectively shall not be answerable for omitting to. attend to such trusts, or to join in the execution of such powers in America and England respectively, and that all purchasers and others may deal with such trustees or trustee respectively alone. But this present proviso shall not have the effect of authorizing such trustees or trustee respectively to exclude from such management and execution the other trustees or trustee, in case and so far as they or he shall be desirous of interfering in such management.” Broad discretionary powers were conferred upon the. trustees in the disposition and management of the affairs of the estate. They were authorized by the testator generally, “to act with reference to my residuary estate;, and the trusts and powers of this my will as if my trustees were absolute owners, their decision being, in all cases of doubt, dispute or difference, binding and conclusive on all persons beneficially interested whether under disability or not, and notwithstanding that such persons or some of them may for the time being be unborn or unascertained. And I expressly declare that my trustees shall have absolute discretion in the exercise and execution of the powers and trusts hereby created or herein expressed or implied, and that the concurrence of any person or persons beneficially interested shall not be required in any sale, partition, exchange, lease, mortgage or other transaction, nor shall the dissent or opposition of any such persons or person have any effect, and no person paying money or transferring property to my trustees or otherwise dealing with them shall be bound or concerned to enquire as to .the necessity or propriety of anything done or authorized by my trustees, or be affected by any irregularity or impropriety in anything so done or authorized.”

At the time of the execution of the will, two of the executors and trustees named resided in this State, the others in England. It appears that under the powers thus conferred, those trustees resident in America, on behalf of the estate of the testator, had become possessed of certain bonds issued by the defendant, the Ocean Steamship Company, and had caused them to be registered as the property and in the name of “the estate of William Battersby.” Subsequently, at the request of one of the executors named, the other not being then in this country, the Ocean Steamship Company permitted such bonds to be transferred upon the books of the company, so as to make them payable to bearer. Thereupon the bonds so registered in the name of the estate of Battersby were- appropriated and converted to his own use by such executor. Being lost to the estate, the remaining trustees brought an action to recover their value from the Ocean Steamship Company, alleging a breach of duty in that company, in that it permitted the change in registry, which caused bonds registered as property belonging to the estate of Battersby to appear as if they were registered in the name of the bearer generally. There is no evidence in the record, and it was not claimed upon the trial, that the Ocean Steamship Company had actual notice of any wrongful purpose upon the part of the executor in causing the registry of the bonds to be changed; so that, being innocent in this respect, the case of necessity turns upon the question as to whether the trustee or executor had the power, under the will, to- direct the change; and thus justify the act of the company.

Upon the trial of the case the instructions given by the circuit judge amounted to a practical direction of a verdict for the defendant; and whether or not such instructions were correct depends upon the construction which should be placed upon the will of the testator.

1. As will be seen by reference tO' the extract from the 24th item of the testator’s will, as hereinbefore quoted, it was provided that the trustees in England “may leave” to the trustees residing in America the entire1 management and execution of the trusts contained in the will, in SO' far as they might have reference to and affect property situated in America. We think the testator intended, from the use of this expression, to- confer these powers upon the American trustees and executors, without reference to any express or affirmative action upon the part of their foreign cotrustees and coexecutors giving assent to such management. Had the term “may leave” been employed by the testator in an active rather than in a passive sense, he would have selected words more apt to the expression of that idea, and he would have conveyed his meaning by the use of an expression something like this: “my executors and trustees resident in America, by and with the assent of my executors and trustees residing in England,” or, “my executors and trustees residing in America, my executors and trustees residing in England consenting.” In such a case actual affirmative assent by the foreign executors and trustees would be necessary to give validity to a dormant power expressed in the will. The power would not have been complete without the assent of the coexecutors and cotrustees. But the language used, we think, more reasonably implies a purpose in the testator to endow the several classes of trustees with a valid subsisting power to' execute the trust, the exercise of this power being dependent upon their own will, and not necessarily upon the assent of the foreign coexecutors and cotrustees. This construction is borne out by the further provision in the same item, that it should not be construed so as to prevent the foreign trustees from participating in the execution of the trust touching the American property, and vice versa, because if the power were a dormant one and could be awakened into activity only by the assent of the foreign executors and trustees, this latter provision would be altogether unnecessary, for by withholding assent either of the respective classes of trustees and executors could defeat at any time any effort upon the part of their cotrustees and coexecutors to prevent their participation in the execution of the trust. Thus this provision to prevent exclusion seems to recognize the fact that, independently of affirmative action upon the part of their fellows resident abroad, the trustees resident in America should proceed with the execution of the trust in so far as concerned the property immediately committed to their •care, and vice versa. We are thus led to the conclusion that the power was vested in the American trustees to ■execute the trust touching the property located in.America, without the express assent or participation of their foreign cotrustees and coexecutors in the act. We have thus far dealt with the question as to whether the assent of the foreign executors or trustees was necessary to give force to the power of the American executors or trustees.

2. We will now inquire whether the powers thus conferred could be well exercised by one of such trustees. Looking to the same item of the will, it will be seen that the testator, in conferring the powers, uses the language, “I declare that my trustees resident in England may leave to my trustees or trustee for the time being resident in America the entire management of the aforesaid trust, and the •entire execution of the aforesaid powers, except the power of apportionment and allotment, so far as they respectively are, from the situation of the property or for any other reason, to be performed in America,” or vice versa. The use of both the singular and plural numbers in speaking of ihe trustees would imply that the testator had in mind a ■contingency which might and did thereafter in fact arise. Lie recognized the possibility that a time might come when his estate would be represented, by reason of the death or absence of the nominated trustees in each or either of the respective countries, by a single trustee, and it is therefore that he uses the expression “trustees or trustee” for the time being resident in the two countries respectively. The exercise of this power by a single trustee in either of the •countries respectively named was dependent upon his being at that time the sole representative of the trust estate resident in such country; and therefore, one of the named trustees resident at the time of the execution of the will in this country having subsequently returned to England, leaving the trustee whose conduct is now under review the only resident representative of the trust estate in this country, it was competent for him to exer.cise all of the powers conferred by the terms of the trust.

3-4. - As we have heretofore seen, the will, in speaking of the named persons as trustees and executors, does not distinguish between those duties enjoined upon them in the one or the other capacity. It confers upon them, in their capacity as trustees, some powers and imposes upon them some duties which, under our law, would more appropriately devolve upon them in their capacity as executors; but in nominating them, it names them in the dual capacity of “trustees and executors.” The only specific duty which appears to have been imposed upon them in their single capacity of executors was that of receiving a certain legacy bequeathed to each of them who should participate in proving the will, but throughout its entire context the will treats these persons as the accredited representatives of the estate. They were, so to speak, ministers plenipotentiary in so far as their conduct affected the interest of the testator’s estate, or the interest of any person claiming under the will. They were authorized to generally act with reference to the residuary estate, and the trusts and powers contained in the will, as if they were the absolute owners, their decision being in all cases of doubt or dispute absolutely conclusive on all persons beneficially interested. ■ lie declared that such trustees, in dealing with the property committed to their care, should have absolute discretion in the exercise and execution of the powers and trusts created by the will, and all such as might be implied therefrom. It provided that the concurrence of any person or persons beneficially interested shall not be required at any sale, partition, exchange, lease, mortgage, or other transaction, and that the dissent or opposition of any such person could be of no effect. It was further provided, that no person paying money or transferring property to the trustees, or otherwise dealing with them, should be bound or concerned to inquire as to the necessity or propriety of anything done or authorized by such trustees, nor should they be affected by any irregularity or impropriety in anything so done or authorized. An instrument conferring broader discretionary powers upon trustees or executors has never before come under our observation; and in the exercise of such powers, there is scarcely room to doubt that a trustee who was lawfully exercising them could, with the moneys of the estate, purchase bonds by way of investment, cause them to be registered in the name of the estate, and transfer them at his pleasure. Even if the terms of the will admitted of a doubt as to whether the person, whose alleged infidelity resulted in the injuries which are the basis of this action, had the. power as executor to direct the change in the registration of these bonds, yet the power was conferred upon him nominatim, and there could not be the slightest doubt that in his character as trustee he had the power which he in fact exercised. This being true, that other principle of the law would make valid his act: that if a given power be conferred upon a named person who acts with respect to the subject-matter in a dual capacity, if in the exercise of the power in one capacity the act be authorized, and in the other unauthorized, the act done by him will be referred to the power and not to the capacity in which he professes to act, and will therefore be upheld. If, however, the power is conferred upon trustees generally, they not being, named, the contrary would be true; so that when we regard this transaction in the light of the powers conferred by the will, we cannot doubt that the single trustee remaining resident in this country had full power to execute 'the trust therein provided, and that a third person, having no actual notice of a fraudulent intent, is protected against the consequences of the wrongful act of one. in whom the testator himself reposed such implicit and unbounded confidence. This leads us to the conclusion, that the court did not err in refusing the new trial, and the judgment is accordingly

Affirmed.