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Petition for injunction. Before Judge Pharr. Fulton Superior Court. October 24, 1952.
HAWKINS, Justice.
1. While the protective powers of a court of chancery over trust estates and the estates of wards of chancery are broad, comprehensive, and plenary, in construing a will, the intention of the testator must be sought, and the court has no power to devise a new scheme or to make a new will.
2. The petition failed to state a cause of action, and the trial court did not err in sustaining the demurrers thereto.
The petition in this case discloses that James W. English executed a lease to M. Rich & Bros. Co., dated July 28, 1919, covering certain described property in the City of Atlanta, for a term of 52 years and 1 month, beginning August 1, 1919, and terminating August 31, 1971. James W. English died testate February 15, 1925, and his will was probated in solemn form, a copy of which is attached to the petition. The provisions of the will pertinent to a decision of the question here presented are as follows:
After making certain specific gifts, the will disposes of the residue of the estate by leaving it in trust to the executors and their successors in trust, who were directed to make certain payments for the benefit of a trust estate, and then to divide the balance of the income among the testator's three named children during their respective lives. Upon the death of any one of the children leaving a child or children surviving, the share of income of the deceased child of the testator was directed to be paid to such child or children. If a child died leaving no child or children, or if a grandchild should die before the distribution of the trust estate, provision was made for the payment of the share of such deceased child or grandchild to other of the issue of the testator. On the death of the last surviving child of the testator and until the time set for the distribution of the estate, the net income was directed to be distributed per capita among the grandchildren of the testator, including those in life and those thereafter born, descendants of a deceased grandchild to take equally the share of a deceased grandchild. If a child of the testator died leaving no issue but leaving a wife or husband, such a child was authorized by the will to direct the payment of half of the deceased child's share in the income to such surviving wife or husband until the death of the last surviving child of the testator. One of the defendants in this proceeding is the widow of the deceased son of the testator, and takes under the exercise of this power by her husband.
The will recites that the testator had recently entered into the lease above referred to, and in order that it might be properly carried out, directed that the whole of the estate be held together for twenty years from the death of the testator, and further that the part of the estate covered by the lease to M. Rich & Bros. Co., be kept intact until the time fixed in the lease for its expiration; but, in the event the lease should for any reason terminate before the death of the last surviving child, or the testator's estate should cease to hold the leasehold interest, a distribution of the property was directed upon the death of the last surviving child. If the lease should terminate after the death of the last surviving child, the will directed: that distribution "shall be made as soon thereafter as my executors shall be able to take possession of and properly administer the property covered by said lease. In the meantime, my executors shall continue to distribute the net income from my estate in accordance with the directions hereinbefore given, and at the expiration of the several times mentioned for holding the said several portions of my estate together, my executors are directed to distribute such portions per capita in equal proportion to such persons being children of my son, Harry L. English, and of my daughters, Emily English Robinson and Jennie English Kiser, as shall at that time answer the description of my 'heirs at law' under the laws of Georgia as now existing, such persons to take the corpus of my estate so to be severally distributed to them in fee simple and free from any and all trusts of every character."
The will conferred upon the executors power to sell at public or private sale without recourse to any court any portion of the estate "real or personal, or any leasehold interest," and, reinvest "always upon the same uses and trusts herein declared," and provided: "In the management of my estate the powers herein conferred may be exercised by my executors and their successors, whether they purport to act as trustees or as executors. They shall have the power to execute leases upon any portion of my property for terms not extending beyond the several dates herein fixed for the distribution thereof, and may make such other contracts, not in conflict with the limitations herein expressly imposed upon their powers, as may be needful to the proper management of my estate."
The petition in this case, brought by First National Bank of Atlanta, as executor and trustee under the will of James W. English, and by Emily English Robinson, daughter, and Gordon P. Kiser, son-in-law, of the testator, in their personal and individual capacities and as executors and trustees under the will, names as defendants M. Rich & Bros. Co., the present lessee of the property involved, the other living daughter of the testator, and all of the living grandchildren and great-grandchildren of the testator, and, as a class, they, together with the lineal descendants of children, grandchildren, and great-grandchildren of James W. English who are born and yet unborn and to be born, a proper guardian ad litem being appointed to represent all minors; and alleges that, through negotiations between the executors and trustees and the present lessee, they have agreed upon the terms of three contracts, copies of which are attached to the petition, and which they seek authority from the court to enter into, alleging that the lessee will not enter into any one of the contracts separately, but will enter into the contracts only if all three are authorized and executed, which are: (1) an agreement modifying the existing lease dated July 28, 1919, which had been entered into by James W. English in his lifetime; (2) a new lease, beginning at the time of the termination of the existing lease on September 1, 1971, and terminating August 31, 2031, with an option to the lessee to extend the lease for an additional term extending to the year 2056, and with an option giving to the lessee the exclusive right to purchase the property demised during the term of the lease or the renewal thereof, which may run to the year 2056; and (3) an agreement concerning easements over the demised property belonging to the English estate, and settling boundary lines between that property and adjacent property of M. Rich & Bros. Co.
The petitioners prayed, among other things: that the court take jurisdiction of the property and over this proceeding, and thereafter hold and retain jurisdiction until the termination of the proposed lease and option thereon; that the executors be made officers of the court to carry out the orders and fulfill the directions imposed by the decree in this case; that a commissioner be appointed by the court as a representative of the court to carry out the orders and fulfill the directions imposed by the decree; that the commissioner so appointed by the court and the executors and trustees under the will, as officers of the court, be empowered, authorized, and directed as part of one transaction and at the same time to execute the three proposed contracts, including the proposal to lease and the proposed option; to collect the rents, and, if the option to purchase should be exercised, to execute deed to the property in favor of the lessee, to receive the purchase money therefor, and to distribute it to the persons who might be entitled to receive it under the terms of the will.
To this petition as amended, Mrs. Emily Robinson Ewing, a granddaughter of James W. English and one of the defendants named in the petition, interposed her objections and demurrer upon the grounds, among others: that (1) the original petition fails to set forth a valid cause of action which would authorize any of the relief sought therein, and the offered amendment does not cure the defects in the original petition; (2) the petition and the offered amendment fail to state a case which would authorize the court to grant the relief sought or any part of such relief; (3) the original petition and the offered amendment show that the court would not have any authority or jurisdiction to grant the relief sought.
The trial judge sustained these grounds of objection and demurrer and dismissed the petition, to which judgment the plaintiffs except.
(After stating the foregoing facts.) While this court has held in a number of cases that the protective powers of a court of chancery over trust estates and the estates of wards of chancery are "broad, comprehensive, and plenary" ( Orr v. Orr, 197 Ga. 866, 30 S. E. 2d, 900; Turner v. Prigmore, 202 Ga. 377, 43 S. E. 2d, 259; Dooley v. Scoggins, 208 Ga. 200, 66 S. E. 2d, 62, and cases there cited), it will be noted that in all such cases the power is exercised to protect and not destroy trust estates and estates of wards in chancery. There are other equally well settled principles of law which preclude a court of equity from exercising the power sought in the instant case, which, if granted, would in effect destroy the will of a testator, write another will for him, destroy the trust estate created by the will of the testator, and create in its place another trust extending over a period of more than one hundred years, far beyond the time and intent of the original trust, and prevent a vesting of title in the beneficiaries to the property involved as provided by the terms of the will. Some of those principles are: That a testator, by his will, may make any disposition of his property not inconsistent with the laws or contrary to the policy of the State (Code, 113-106); that, in all cases involving wills, the court shall seek diligently for the intention of the testator and give effect to the same as far as it may be consistent with the rules of law (Code, 113-806); and that "Every will is a thing to itself. It is emphatically not only sui juris but sui generis. Its terms are its own law, and the application of that law by construction of itself--of the statute which the testator himself enacted, to the contestants for its bounty, is the plain duty of the court." Olmstead v. Dunn, 72 Ga. 850, 855; Stringfellow v. Harman, 207 Ga. 62, 64 (60 S. E. 2d, 139). "It is a general rule that the intentions of the testator must be sought in construing a will, but the court has no power to devise a new scheme or to make a new will." Bramblett v. Trust Company of Ga., 182 Ga. 87, 94 (185 S. E. 72). Under the terms of the will here involved, it is clear that the testator intended that the remaindermen should take "in fee simple and free from any and all trusts of every character." Our law defines a fee-simple estate as follows: "An absolute or fee-simple estate is one in which the owner is entitled to the entire property, with unconditional power of disposition during his life, and which descends to his heirs and legal representatives upon his death intestate." Code, 85-501. In authorizing his
executors and trustees to execute leases upon any portion of his property, he limited such power to "terms not extending beyond the several dates herein fixed for the distribution thereof," and in authorizing them to make such other contracts as may be needful to the proper management of his estate, that power was limited to the extent that it was not to "conflict with the limitations herein expressly imposed upon their powers." To authorize the execution by the executors and trustees of the contract here sought, would be to disregard the clear, unequivocal wishes and intentions of the testator as expressed in his will, and, in effect, to make a new will for him after his death. It would be tantamount to the appointment of a commissioner by the court to take charge of and hold this property in the custody of the court for more than one hundred years, with the right in the lessee to purchase at a fixed price, or at another price to be arrived at by the method provided under the contract, during that period of time, but the lessee being under no obligation to do so, thus preventing any of those remaindermen who are now in life from ever becoming the fee-simple owner of his or her interest in the property "free from any and all trusts of every character," and with unconditional power of disposition during his or her lifetime. A court of equity has no such power, and the trial court did not err in sustaining the demurrers to the petition.
What is here ruled is not in conflict with the decision of this court in Palmer Brick Co. v. Woodward, 135 Ga. 450 (69 S. E. 827). That case is distinguishable from the present one for the reason that the instrument creating the trust contained no such restrictions or limitations as are contained in the will here involved.
Since the foregoing ruling is controlling, it is unnecessary to pass upon the question raised by the exception to the judgment on the special demurrer to a portion of the amendment to the petition.
Lewis S. Pope, James A. Branch, Spalding, Sibley, Troutman & Kelley, Parker & Parker and Mitchell & Mitchell, contra.
Moise, Post & Gardner and John L. Tye Jr., for plaintiffs in error.
Saturday May 23 04:09 EDT

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