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Construction of will, etc. Glynn Superior Court. Before Judge Thomas. February 19, 1959.
WYATT, Presiding Justice.
The judgment of the court below, overruling a general demurrer to the petition and sustaining a general demurrer to the answer, was not error for any reason assigned.
Norman Joshua Stewart brought this suit against the First National Bank of Brunswick, Lloyd Spencer Horton, and Mrs. C. N. Martin, seeking to require the executor of the will of Mrs. Valeria Hill Stewart to make a conveyance to him of the residue of his wife's estate. The petition was in two counts. Only count 1 is here involved, and the sole question presented concerns the effect of the following provision in the will of Valeria Hill Stewart: "All the rest and residue and remainder of my property, real, personal or mixed, of whatever kind and character and wheresoever situated, whether now owned or hereafter acquired, and including any lapsed legacy or devise of personalty or realty, I give, devise and bequeath to my trustee, hereinafter named, and to her successor in trust, in fee simple, but only as trustee as herein specified and provided, and upon the trust hereinafter named, to wit: My trustee shall hold, control and administer said properties for the use and benefit, support, education and maintenance of Lloyd Spencer Horton, Jr., born October 26, 1927, and Carol Olive Horton, born May 12, 1931, the minor children of my sister Olive Horton, until the younger of said children shall reach the age of twenty-one (21) years."
When the testatrix died, both children named in the above-quoted provision of the will of Valeria Hill Stewart were over 21 years of age. No provision was made in the will as to the remainder interest, if any, after the children became 21 years of age.
The court below overruled a general demurrer to count 1 of the petition, and sustained a general demurrer to the answer to count 1 of the petition, in effect holding that the petitioner was entitled to have the property in question conveyed to him. The exception here is to that judgment.
The question presented here for decision is whether, under the provisions of the will of Valeria Hill Stewart, set out in the statement of facts, the two named persons were vested with a fee-simple interest upon the death of Valeria Hill Stewart, or whether there was a resulting trust to the heirs of the testatrix. The plaintiffs in error spend much time and argument on the question of distinguishing between executed and executory trusts and on classifying this trust as one or the other, and also cite many cases dealing with the proposition that a gift of the income from property without limitation as to time amounts to a gift of the property itself. We recognize these as sound principles of law, but, in the view we take of this case, neither of these questions is involved. The question is, rather, whether there was ever any trust in the instant case at all. With reference to this question, we find that there was no trust and that no trust ever arose under the provisions of the will above quoted.
Until the death of the testatrix, her will was wholly without effect. The provisions of the will in question clearly provide a trust upon the death of the testatrix for the use and benefit of the named persons until the youngest reaches 21 years of age only. However, when the testatrix died, those named were already over 21 years of age, and the time for terminating the trust had already passed. The purpose of the trust had ceased to exist, and there were no persons who were entitled to the benefits of the trust. Code 108-106 provides: "(4) Where a trust is expressly created, but no uses are declared, or are ineffectually declared, or extend only to a part of the estate, or fail from any cause, a resulting trust is implied for the benefit of the grantor or testator or his heirs." This Code section is applicable and controlling in the instant case. Clearly a trust was expressly created. The uses declared were for the use and benefit of named persons until they reached 21 years of age. When the will became effective, these persons were more than 21 years of age. The uses then entirely failed, and under the provisions of the Code section above quoted, a resulting trust arose for the benefit of the heirs at law of the testatrix. Butler v. Citizens & So. Nat. Bank, 211 Ga. 414 (86 S. E. 2d 520).
It follows, therefore, the judgment of the court below was not error for any reason assigned.
Judgment affirmed. All the Justices concur.
Ronald F. Adams, contra.
Nightingale & Liles, for plaintiffs in error.
ARGUED MAY 11, 1959 -- DECIDED JUNE 5, 1959.
Saturday May 23 00:39 EDT

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