Milledge v. Bryan

1. A trust deed gave power to the trustees to mortgage or sell land to pay a debt of the grantor, and to raise a specified amount to be paid to the grantor, or to O. M., as either might order. The income from the balance of the trust property was to be paid to the grantor, or to said O. M. The corpus was to be conveyed by the trustees to such persons as the grantor might, during life or by will, appoint. If the grantor died intestate, then to hold for O. M. and her children then living, free from the debts or control of the husband of O. M. The grantor died intestate, and without executing the power of appointment. C. M. and her four children survived : Held, That at the death of the grantor the children of C. M. toot a present interest in four-fifths of the property, the trust as to which interest was determined, and the legal estate therein vested in the children. 2. In such a case, a Judge of the Superior Court did not have power, on the resignation of the trustees, after the death of the grantor, to appoint a successor in the trust for the children, and on a bill filed by the prochein ami of the mother and children, in their name and by her consent, to grant an order in Chambers, authorizing the trustees to mortgage the whole estate, either to pay a debt or to raise money to educate the children.

Trusts. ' Equity. Proohein ami. Gazaway L. Milledge brought ejectment against Jane Bryan to recover an undivided fifth of certain lands situated in Chat-ham county. The defendant pleaded, 1st. Not guilty. 2d. That the suit, though having for its object the enforcement of rights which accrued prior to June 1st, 1865, was not brought until after January 1st, 1870. The following is an abstract of the evidence for the plaintiff: 1st. A trust deed from Mary Milledge to John W. Anderson, Francis S. Bartow, and Charles A. L. Lamar, dated February 16, 1853, whereby she conveyed to them certain lands in Chatham county, of which the land in question is a part, to have and to hold the same, with the appurtenances, etc., unto them and their successors in the trust, their heirs and assigns forever, upon the following trusts, viz.: “In trust, to grant, bargain, sell, lease, mortgage, or otherwise dispose of said lots, in whole or in part, and in such manner, or upon such terms as to the said parties of the second part may seem meet and proper, and to apply or hold the money thus realized in manner following, to-wit: first, to the payment and discharge of a mortgage upon said lots from said Mary Milledge to said John W. Anderson, dated the 8 th day of January, 1853, to secure the payment of a note of $4,500 00, bearing the same date with said mortgage, and due sixty days after date, and then to pay the sum of $3,000 00 to the said Mary Milledge, or to the written order and receipt of Catharine Milledge, the wife of John Milledge, jr., of said county of Eiohmond, or to such other person or persons as they, or either of them, may in writing direct, and to invest the residue of said money in such stocks or other securities, or in such real or personal estate, paying at least a semi-annual income, as to the said parties of the second part may seem most suitable, and to pay the income arising from said installments, when made, and also of such portion of the property herein originally conveyed as shall remain unsold, to and upon the written order of the said Mary Milledge, the party of the first part, or upon the written order and receipt of Catharine Mil-ledge, the wife of said John Milledge, jr.; the money thus paid to the said Catharine Milledge, Avife of said John, to be made over to her sole and separate use, and not in any Arise subject to the debts, contracts, or control, of her said husband, and upon the further trust that the said parties of the second part shall and will hold the principal money arising from the sale and lease of said lots, after the payment of said sum of $7,500, as aforesaid, and such of said real estate hereby conveyed and remaining unsold, to and for the use and benefit of the said party of the first part, and to convey the same to such person or persons as the said party of the first part may during her lifetime appoint, or whom she may designate in her last will and testament, and upon such conditions as may be therein declared; and in case the said party of the first part should die intestate, then to hold the same for the said Catharine Mil-ledge, wife of said John, and for the children of the said John and his said wife, living at the time of the death of said party of the first part, free from all control or liability on account of the debts or contracts of said John Milledge. And it is hereby expressly declared that the said parties hereto of the second part, or any further trustees hereof, shall not be held responsible for the acts of each other, but that they shall be severally accountable to the parties in interest for such sums of money as may have been received by each individually. And it is further declared and agreed that if all or either of the trustees hereby appointed shall die or resign the trusts hereby created, that the place of the trustees resigning or dying may be supplied by such person or persons as the said Mary Milledge may, in writing, nominate; and the person or persons thus nominated and accepting the trust shall have all the powers and authorities which he or they would have had, were they the original trustees herein.” 2d. Depositions of Catharine H. Milledge. “I know of the trust deed. I am the Catharine Milledge therein mentioned as the wife of John Milledge, jr. Mary Milledge and my husband were cousins, and I knew her well, of course. She died September 28, 1856. My husband died May 13, 1872. We had four children living at the time of Mary Milledge’s death, viz.: John, Kate, Richard, and G. L. Milledge. The last named is the plaintiff in this suit. They are all now living. Gazaway L. is the youngest. He was bom May 30, 1849. My husband was a citizen of Richmond county during the years 1857 and 1358. I knew John C. Snead. He was no relation or connection of ours, but was once a law partner of my husband. I think he resided in Augusta in 1857.” On the cross-examination, the witness said: “I knew the said Anderson, Bartow, and Lamar. I believe they are now dead. They resided in Savannah.” 3d. The defendant then admitted that the land sued for was a part of the land included in the above trust deed, and that the defendant was in possession at the time the suit was brought. FOB THE DEFENDANT. 1st. Petition of the above named Anderson, Bai’tow, and Lamar, and others, for the appointment of John Milledge to be trustee under said deed, in their stead, and order thereon, as follows: “Chatham Superior Court, May Teem, 1857.' \uIn Chatham Superior Court, ex parte John W. Anderson et al. “ GEORGIA — Chatham county : “ To the Honorable the Judge of the Superior Court of said Chatham county, having jurisdiction in equity: “The petition of John W. Anderson, Francis S. Bartow, Charles A. L. Lamar, John Milledge and Catharine, his wife, respectfully showeth, that on the 16th day of February, in the year 1853, Mary Milledge, of the county of Richmond and State of Georgia, in and by a certain indenture conveyed to your petitioners, John W. Anderson, Francis S. Bartow and Charles A. L. Lamar, certain real estate situate in the said county of Chatham, to be by them held in trust for your petitioner, Catharine Milledge, wife of said John Milledge, and her children, free from the debts or obligations of said John Milledge; and your petitioners further show that the said John W. Anderson, Francis S. Bartow and Charles A. L. Lamar assumed the trusteeship cast upon them in and by said deed, and have borne the duties of the same up to the present time; that in and by one of the clauses of the said trust deed, it is declared, ‘ that if all or either of the trustees hereby appointed shall die or resign the trusts hereby created, that the place of the trustee resigning or dying may be supplied by such person or persons as the said Mary Milledge may, in writing, nominate;7 and your petitioners further show that the said John "W. Anderson, Francis S. Bartow and Gharles A. L. Lamar, trustees as aforesaid, are desirous of resigning, and do hereby resign, their said trusteeship, and beg to be discharged from the same; and that your petitioner, Catharine Milledge, is willing they should do so, and hereby consents thereto, and is further desirous that her husband, the said John Milledge, should be, by this honorable Court, appointed trustee, under the said deed, in their place and stead; and your petitioner, John Milledge, hereby consents to accept the said trusteeship, and to discharge the duties of the same; and your petitioners show here to your Honor that, in consequence of the aforesaid resignation by the said trustees, the said trust estate is unrepresented, and your petitioners bring here and show to your Honor the said original trust deed from the said Mary Milledge; and your petitioners will ever pray, etc. (Signed) “Cathaeine G. Milledge, “John Milledge, “C. A. L. Lamab, “Eeancis S. Baetow, “John W. Andeeson, “by his solicitor, John M. B. Lovell.” “In Chatham, Superior Court, ex parte John W. Anderson et at. “On reading and filing the petition in the above case, it is ordered, adjudged and decreed, that the said John W. Anderson, Francis S. Bartow and Charles A. L. Lamar be and they are hereby discharged from their trusteeship, as is prayed for in the aforesaid petition, and that the said John Milledge be and is hereby appointed trustee, under the said trust deed, in their place and stead. (Signed) “W. B. Fleming, J. E. B. Ga. “Dated Savannah, June 17th, 1857.” 2d. An amicable bill, filed in the names of Catharine Mil-ledge, wife of John Milledge, by John C. Snead, as her next friend, and John Milledge, Catharine Milledge, Richard IT. Milledge and Gazaway L. Milledge, infants under twenty-one, by the said Snead, as their next friend, against John Milledge, trustee, etc., with the answer and decree. The bill stated the trust deed already in evidence; that Mary Milledge was dead, intestate, and without having appointed any one to take a conveyance of the property, as provided by the deed; that the minor complainants were the only children of the complainant, Catharine, and her husband, John Milledge, living at the death of the said Mary; that the trustees had sold some of the property and paid the mortgage to Anderson and the $3,000 00 mentioned in the deed, but had made no further sales; that they had afterwards resigned the trust, and John Milledge, the husband of the complainant, Catharine, had been appointed in their stead by the order of the Court; that there was due on the property $1,000 00 to Lamar, and $600 00 to one "Wylly, for which he had a lien, left unpaid by the resigned trustees; that it was necessary to provide for the education of the two eldest children, but they were without means to procure it, unless means could be raised by a mortgage of the unsold property remaining in the hands of J ohn Milledge, the trustee; that the deed gave power to the trustees and their successors to sell and mortgage the property or any part of it, and that the complainants had applied to J ohn Milledge, as successor in the. trust, to mortgage the property to raise $4,100 00 to pay off the above mentioned incumbrances, and to educate the complainants, but that John Mil-ledge refused to do so, for want of authority, etc.; that all parties in interest were represented and consenting, and there was no question of fact in dispute. The bill then prayed for a decree to require Milledge, as trustee, to raise $4,100 00 by the proposed mortgage, etc. Appended to the bill was this authority to the solicitors: “We authorize Messrs. Lloyd & Owens to file this bill, and use our names as complainants and proehein ami. (Signed) “John C. Snead, Eor Mrs. Catharine Milledge, and the infants, complainants, John, Catharine, Richard H. and Gazaway L., named in the foregoing bill. (Signed) “June 20, 1857.” “Catharine Milledge. John Milledge, the defendant, acknowledged service June 20, 1857, and on the same day, before a Notary of Chatham county, swore to his answer, which admitted the facts stated in the bill, and was filed June 22, 1857 On the same day the answer was filed, the decree was rendered, reciting that “this cause came on to be heard before me at Chambers upon bill, answer and exhibits, all parties in interest being represented and consenting, and no question of fact being in dispute,” and proceeding to give the authority to mortgage prayed for. 3d. A mortgage given by John Milledge, as trustee, in pursuance of the above decree, to Joseph Burke, dated June 22, 1857, including the land sued for. 4th. The record of foreclosure proceedings upon said mortgage. Eule absolute rendered in May, 1858. 5th. The execution in pursuance of the foreclosure, with the sheriff’s entries of the levy and sale. 6th. The deed from Waring Bussell, sheriff, etc., in pursuance of the sale, to Joseph Bryan, dated March 4, 1859, and including the land sued for. 7th. The will of the said Joseph Bryan, dated August 5, 1859, whereby he gave all his property to his wife, Jane, the defendant in this suit. It was admitted by the plaintiff that at the time of the sheriff’s sale to Bryan, Milledge was exercising authority and ownership over the land as trustee; and by the defendant, that at the time of the filing of the amicable bill, all the parties to it resided in Eichmond county. The jury returned a verdict for the defendant. The plaintiff moved for a new trial, upon the following grounds, to~wit: 1st. Because the Court did not charge, as requested by the plaintiff, that the trust created by the trust deed from Mary Milledge to John W. Anderson and others, became executed upon the death of Mary Milledge; and that the said plaintiff then became the absolute owner, at law as well as in equity, of an undivided fifth of the property, the office of the trustee then ceasing as to him. 2d. Because the Court did not charge, as requested by the plaintiff, that the order appointing John Milledge trustee under the said trust deed did not make him, trustee for the plaintiff. 3d. Because the Court did not charge, as requested by the plaintiff, that the said order was void as to him, because he was not a party to the petition on which it. was granted. 4th. Because the Court did not charge, as requested by the plaintiff, that the said order was void as to him, because he did not consent thereto, he being then an infant and incapable of such consent. 5th. Because the Court did not charge, as requested by the plaintiff, that the said order was void, because all parties in interest were not represented and consenting, the Court being without jurisdiction, even in term time, to make such an order in an ex parte proceeding, except where all parties in interest were represented and consenting, and there was no question of fact in dispute. 6th. Because the Court did not charge, as requested by the plaintiff, that the said order was fundamental to the decree afterwards granted; and the order being void, the decree was also void, at least as to the said plaintiff. 7th. Because the Court did not charge, as requested by the plaintiff, that the decree granted at Chambers was void, because the Judge, at Chambers, had no authority to grant such a decree, except with the consent of all parties in interest; it being apparent on the face of the bill that the plaintiff was an infant, and was not consenting because he could not consent. 8th. Because the Court did not charge, as requested by the plaintiff, that the decree was void, because the Judge, at Chambers, had no authority to order a sale or mortgage of trust property for any purpose not involving the preservation or reinvestment of the trust fund. 9th. Because the Court charged substantially to the' contrary of each of the above propositions. The motion was overruled, and a new trial refused. To this decision the defendant excepted upon each of the grounds aforesaid.