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BUTLER v. CITIZENS & SOUTHERN NATIONAL BANK, executor, et al.
18832.
Construction of will. Before Judge Atkinson. Chatham Superior Court. October 26, 1954.
HAWKINS, Justice.
Where, as here, a testator created by his will an executory trust, vesting full title to all his property in designated trustees for the benefit of his wife for life, and conferred upon his wife the power to dispose of the residue of his estate by her will, which power she failed to exercise, upon her death a resulting trust by operation of law is created reinvesting the property in the estate of the testator, and the heirs of the testator who are entitled to take the residue of the estate must be determined as of the date of the death of the life beneficiary, and not at the time of the death of the testator.
"Item 1. I give, devise, and bequeath all of my property and estate of any and every kind and nature, whether real, personal or mixed including cash on hand or in a bank or banks, all stocks, bonds, securities, and other choses in action and causes of action, whether accrued or not of every nature, and all other property and property rights of any and every kind and description whatsoever unto my beloved wife, Lora M. Butler, and The Citizens & Southern National Bank of Savannah, Georgia, in trust nevertheless for the uses and purposes hereinafter mentioned only to wit:
"A. To invest, handle, and generally manage said property and estate, and re-invest the same and change securities in which same is invested as often and at such times as may be deemed advisable, and to collect rents, interest, dividends, and income therefrom, and to disburse the same in accordance with provisions hereinafter set forth.
"B. I will and direct that the proceeds and income of said estate and such portion of the corpus as may be necessary if the income there from is not sufficient, be used and expended to give and provide for my wife proper living expenses, support and maintenance and to provide the ordinary comforts of life in an amount not exceeding two hundred fifty ($250.00) dollars per month; and that there further be expended for the use of any said wife, Lora M. Butler, all money that may be desired by her or be determined to be proper for her for medicines, medical care, hospitalization, and nursing, and all purposes which may be proper for the protection and care of her health, and further that she be permitted to use such amounts of money from time to time as she may desire for travel and with the full right to my said wife, Lora M. Butler, to make such donations each year to purposes ordinarily contributed to by us or each of us during our lifetime as she may deem proper, all for and during the full period of the natural life of my said beloved wife, Lora M. Butler.
"C. I direct that one thousand ($1000.00) dollars be set aside and kept by my trustee herein named for the purposes of and that it be used at the death of my brother, Olin E. Butler, for and be applied upon payment of funeral expenses and any expenses incurred for the last illness of my brother, Olin E. Butler.
"Item 2. I give, devise and bequeath to my beloved wife, Lora M. Butler, the full power and authority to dispose of by will any and all of the residue of my property and estate of any and every nature and kind whatsoever remaining after her death."
Both the wife, Lora M. Butler, and Citizens & Southern National Bank were appointed as executors and trustees and qualified as such. Mrs. Butler died December 27, 1953, without exercising the power of appointment conferred upon her by Item 2 of the will. The petition named as defendants Olin E. Butler, the brother of C. H. Butler and a legatee under the will, and Roscoe Lemons and 25 other persons as all of the heirs at law of Lora M. Butler, deceased.
One of the questions presented by the bill for direction was whether heirs at law of Lora M. Butler, deceased (who are defendants in error here) were entitled to take the residue of the estate of C. H. Butler upon failure of Lora M. Butler to exercise the power of appointment conferred upon her by the will, or whether the residue of said estate reverted and belonged to Olin E. Butler, the brother and now sole heir at law of the testator (who is plaintiff in error here). The question presented involved no issue of fact, but only a question of law, as follows: There being no person named as remainderman in the C. H. Butler will, and no person appointed by Mrs. Butler, to whom did the residue go upon the death of Mrs. Butler? That the residue must go to the heir or heirs of the testator, C. H. Butler, was not in contest, but the question presented was whether his heir or heirs should be ascertained as of the date of the testator's death or as of the date of the death of Mrs. Butler. The trial judge directed the trustee to deliver the residue of the estate to the heirs at law of Mrs. Lora M. Butler, after providing for the special bequest contained in the will and the cost of administration and other legitimate charges against the estate, and that the claim of Olin E. Butler to the estate be denied. To this judgment Olin E. Butler excepted.
(After stating the foregoing facts.) It is insisted by counsel for the defendants in error in their brief: That the question presented "is a relatively simple one. Concisely stated it is: Where a testator creates a life estate in a person with power of appointment by will as to the remainder and the life tenant fails to exercise such power (there being no provision as to disposition of the remainder in default thereof) who is entitled to the reversion--the heirs of the testator as of the date of his death or the testator's heirs as of the time of the death of such life tenant?" We cannot agree that this is a correct statement of the question presented, or that it is a simple one. To the writer it has been most difficult.
It is true, as held by this court in Oliver v. Powell, 114 Ga. 592 (4) (40 S. E. 826), that, "Where realty is devised to one for life, and no further testamentary disposition thereof is made, the reversionary interest in fee remaining in the testator's estate vests immediately upon his death in those who are then his heirs at law, with the right of possession postponed until the death of the life-tenant, and does not remain in abeyance while he lives and at his death vest in those who would then be such heirs." See also Armstrong Junior College Commission v. Livesey, 189 Ga. 825 (7 S. E. 2d 678, 132 A. L. R. 1063). It is also true, as held in Keen v. Rodgers, 203 Ga. 578 (5) (47 S. E. 2d 567), that " 'The general rule is that where an estate is expressly given for life, with an added power of disposal conferred upon the life tenant, this does not enlarge the life estate into all estate in fee.' Bienvenu v. First Nat. Bank of Atlanta, 193 Ga. 101, citing 21 R. C. L. 776, 5; Warren v. Ingram, 96 Miss. 438 (51 So. 888, Ann. Cas. 1912B, 422, 424). This is true because 'A power is not property but a mere authority, and an absolute power of disposal is not inconsistent with an estate for life only. The gift of such power will not enlarge the life estate previously given, but confers an authority in addition thereto.' Willie v. Hines-Yelton Lumber Co., 163 Ga. 64, 66, 67 (135 S. E. 505), citing Melton v. Camp, 121 Ga. 693 (49 S. E. 690)." Counsel for the defendants in error contend that the decision of this court in Guess v. Morgan, 196 Ga. 265 (26 S. E. 2d 424), is controlling of the question here presented. In that case W. T. Morgan by deed conveyed lands to his daughter and to her bodily heirs, and if no such heirs, "then to be left to her choice any lumber of Morgan family, brother or sister, nephew or nieces." The daughter had no bodily heirs and died without having exercised the power of appointment. In that case this court said (at p. 271): "Although there was no remainder, the grantor had provided a means, through the power of appointment in the donee, whereby the estate could be shifted to another person. Bodily heirs having failed, the donee having not exercised the power, and the grantor not having provided a final resting place for the fee in these contingencies, it had to go where the law guided it; . . . in such cases the property reverts to the donor to go to such persons as directed in his will in case of such contingency, or, upon failure of such direction, to his heirs at law." In reaching this conclusion, however, this court was particular to point out that "W. T. Morgan died intestate, and therefore no disposition was made of the reversion, it not appearing that he had otherwise alienated it." It is in this respect that the Morgan case differs from the present one, for, as we construe the authorities hereinafter cited, the testator here did convey to the trustees the entire title to the properties comprising his estate, and thereby alienated the reversionary interest in the properties, placing it in the trustees. The will here involved devised and bequeathed all of the testator's property, estate, and property rights of whatever kind and description whatsoever to the trustees "in trust nevertheless for the uses and purposes hereinafter mentioned only to wit: (A) To invest, handle, and generally manage said property and estate, and to re-invest the same and change securities in which same is invested as often and at such times as may be deemed advisable, and to collect rents, interest, dividends, and income therefrom, and to disburse the same in accordance with the provisions hereinafter set forth." (B) That the proceeds and income of said estate and such portion of the corpus as may be necessary if the income be not sufficient, be used and expended to give and provide for his wife, Lora M. Butler, proper living expenses, support, and maintenance not exceeding $250 per month, and for the expenditure of certain other funds for her use; and (C) For the setting aside of $1,000 to be used by the trustees at the death of his brother for the payment of the expenses of his last illness and funeral; and (2) Conferred upon the wife the power of appointment, which she never exercised.
Code (Ann. Supp.) 108-111.1 provides: "A trust shall be executory, and the legal estate shall remain in the trustee, whether or not the beneficiary or beneficiaries be sui juris and whether or not any remainder interest be created, so long as the trustee has any powers or duties in regard to the trust property such as to preserve or protect, to manage, to invest or reinvest, to collect income or proceeds, to sell or otherwise dispose of, to ascertain the objects of the beneficiaries, or to distribute income or principal." In Cushman v. Cushman, 92 Ga. 772 (1) (19 S. E. 46), it is held: "Where the terms of a conveyance by deed to a trustee are large enough to embrace the fee in the premises described, and this fee is carved up into an estate for life in favor of one beneficiary and a remainder in behalf of other beneficiaries, who are uncertain and unascertained, the instrument should be construed as clothing the trustee with full title, and the title as to the remainder should be considered as abiding in him so long, at least, as the identical persons who are to take and enjoy it are not ascertainable. Up to that time, the trust is executory, and the remainder is an equitable, not a legal, estate." See also, to the same effect, Watts v. Boothe, 148 Ga. 376 (96 S. E. 863), overruling former decisions of this court to the contrary; Woodbery v. Atlas Realty Co., 148 Ga. 712 (98 S. E. 472); Burton v. Patton, 162 Ga. 610 (134 S. E. 603); Mason v. Young, 203 Ga. 121, 122 (2, 3) (45 S. E. 2d 643). In Redfearn on Wills and Administration of Estates in Georgia, p. 327, 189, it is said: "In creating a trust estate, the owner of the property of which the trust estate is constituted parts with all rights to it as effectually as if he had sold and conveyed it to another person in an ordinary business transaction."
Applying the foregoing principles of law to the will here involved, it appears that the testator did not convey a life estate to his wife. He created an executory trust to the benefit of his wife for life, with power of appointment by will in her as to the residue, and with no provision as to the disposition of the residue upon her failure to exercise such power. Who, then, is entitled to the residue upon the death of the cestui que trust, the heirs of the testator as of the date of his death, or the testator's heirs as of the date of the death of the cestui que trust? If the former, the judgment of the trial court is correct, for at the time of the death of the testator his wife was his sole heir at law, they having no children. If the latter, then the judgment of the trial court is erroneous, for, after the death of the cestui que trust, the testator's sole heir at law was his brother, Olin E.
Butler (the plaintiff in error here).
The testator here having created an executory trust, vesting the full title to property of the testator in the trustees, no right of reversion or other interest whatsoever remained in the testator at the time of his death which could be inherited by his wife. Upon the failure of the life beneficiary to exercise the power of appointment, a resulting trust by operation of law was created upon her death, reinvesting the property in the estate of the testator, and the heirs of the testator must be determined as of the date of the death of the wife, and not at the time of his death. Code 108-106 (4), 108-110; Redfearn on "Wills and Administration of Estates in Georgia, p. 318, 181; Blount v. Walker, 31 S. C. 13 (9 S. E. 804); In re Mooney's Estate, 131 Neb. 52 (267 N. W. 196); Dennis v. Omaha Nat. Bank, 153 Neb. 865 (11) (46 N. W. 2d 606, 617). See also Annotation in 92 A. L. R. 363. The trial judge, therefore, erred in directing the trustee to distribute the residue of the testator's estate to the heirs of Lora M. Butler, and should have directed its distribution to Olin E. Butler, the brother and only heir at law of the testator at the time of the death of the life beneficiary.
Judgment reversed. All the Justices concur, except Duckworth, C. J., and Wyatt, P. J., who dissent.
John C. Wylly, Bouhan, Lawrence, Williams & Levy, contra.
James F. Glass, Rothenberg & Burris, for plaintiff in error.
ARGUED JANUARY 11, 1955 -- DECIDED FEBRUARY 16, 1955 -- REHEARING DENIED MARCH 16, 1955.
Saturday May 23 02:49 EDT


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