Ellis v. Gray

36 S.E. 97, 110 Ga. 611, 1900 Ga. LEXIS 597

• Court: Supreme Court of Georgia
• Decided: April 11, 1900
• Status: Published

Opinion

Cobb, J.

Ellis and others brought an action against Gray and others, trustees of a Methodist church, to recover possession of a parcel of land. Upon the trial the following facts appeared : Both parties claimed under E. A. Neal. On August 17, 1866, E. A. Neal (evidently then a widow) conveyed the property in controversy to her two daughters, Indiana E. Neal and Laura J. Neal, upon a consideration of five dollars and natural love and affection. The deed recited that the grantees were “to have and to hold said tract or parcel of land, stock, and household and kitchen furniture, to them the said Indiana E. Neal and Laura J. Neal and the heirs of their bodies, together with all and singular the rights, members, and appurtenances to the same in any manner belonging, to them and the heirs of their bodies for their own proper use, benefit, and behoof, forever in fee simple, except so much as may be necessary of above property to pay my present debts, or that I may in future create in my own name, but not to be subject to the debts existing or hereafter created by any future husband that I may hereafter marry, but the right of the possession and free use of all of the above property I retain to myself in trust for my aforementioned children, and should I think it* necessary, at any future time, to sell any or all of said property, I retain and reserve to myself the right to do so, reinvest or dispose of as I may think necessary for the advantage and use of my said daughters before named. I also retain and reserve the use of all of the above property to myself during my natural life, but not for the use or benefit of any future husband that I may hereafter marry, nor subject to any of his debts existing at the time of our marriage or created after the marriage. ” On May 27, 1878, Mrs. E. A. Neal executed another paper in the form of a deed, which purported, in consideration of natural love and affection, to convey to “Indiana E. Ellis [formerly Neal], and her children if any she has, . . for and during her natural life, free from the debts and contracts of her present or future husband, ” the property in controversy; the deed further reciting that Indiana E. Ellis was to hold the property “ for and during her natural life, and at her death to her child or children then living, in fee simple; and if the said Indiana E. Ellis should die without any child or children surviving her, then and in that event I give and grant said property to my daughter Laura Camp [formerly Neal] in fee simple.” On August 13, 1888, Indiana E. Ellis for a valuable consideration conveyed, the property in controversy to the defendants. On August 16, 1888, Laura J. Camp for a consideration of five dollars executed and delivered a quitclaim deed to the property in controversy to the defendants. The judge directed the jury to return a verdict in favor of the defendants, and to this ruling the plaintiffs excepted.

Construing the provisions of the deed of 1866 as a whole, the legal effect of that paper was to reserve a life-estate in the property to the grantor and pass the remainder in fee to the grantees, but subject to a trust of which the grantor was the trustee, first, for the purpose of paying the then-existing debts of the grantor; second, for the purpose of paying any future debts which she might create; and third, for the purpose of selling the property, should the grantor see proper to do so, and reinvesting the proceeds for the benefit of the grantees. • Subject to these trusts, upon the execution of that paper the title to the estate in remainder created by the deed passed to the grantees. The deed being voluntary, the trust in favor of existing creditors was undoubtedly valid. Whether the trust in favor of future creditors was also valid it is not necessary to determine. The provision authorizing the grantor as trustee for the grantees to sell the property and reinvest the same for their benefit was valid so long as the grantees were persons for whom the law authorized a trust to be created. This trust would be good during their minority and would become executed upon their arrival at majority. But even if the trust had continued after majority, it was limited by the terms of the deed to a power in the trustee to sell and reinvest for the benefit of the grantees. The deed of 1878 was not executed by the grantor for the purpose of paying any debts which she owed, either existing at the date of the deed of 1866 or created thereafter, nor in pursuance of a sale the proceeds of which were to be reinvested for the benefit of the grantees. On the contrary, this deed was a palpable effort on the part of the grantor to deal with the property as her own and to transfer the entire estate, except an interest that might arise upon a bare contingency, from one of the grantees in the deed of 1866 to the other. It therefore follows that the deed of 1878 was void, except so far as it conveyed the life-estate of the grantor. The grantees in the deed of 1866 acquired a fee-simple interest in remainder in the property in controversy,, notwithstanding the deed was made to the daughters “ and the heirs of their bodies. ” Civil Code, § 3085; Griffin v. Stewart, 101 Ga. 722. Upon the death of Mrs. Neal they became the absolute owners of the property. This being so, the defendants acquired the absolute title under the respective deeds of the two daughters.

Judgment affirmed.

All the Justices concurring.