Summary
In Orr v. Orr, 197 Ga. 866 (30 S.E.2d 900), the devise of real property was to the testator's named son and daughter for life, with remainder over to a bank as trustee for the children, or descendants of deceased children, of the son.
Summary of this case from Kennedy v. DurhamOpinion
14887.
JULY 7, 1944.
Equitable petition. Before Judge Paul S. Etheridge. Fulton superior court. March 24, 1944.
Brandon, Matthews, Long Nall, for plaintiff in error.
Spalding, Sibley Troutman, Furman Smith, and Samuel N. Evins, contra.
1. Whenever a suit involving the property rights of a minor is instituted in a court of equity, the minor in such action becomes a ward of the court, and the court thereby obtains jurisdiction of his property.
( a) The jurisdiction of equity over the estates of wards of chancery is broad, comprehensive, and plenary.
( b) An equitable petition by two named trustees, one of whom held certain property in trust for herself and the estate of her brother, and the other held the remainder estate in trust for the minor children of said brother, praying for an order to sell the trust property for the purpose of reinvestment, being a term-time proceeding, with all parties properly before the court, set forth a good cause of action, and a general demurrer to such petition was properly overruled.
No. 14887. JULY 7, 1944.
This was a plenary equity suit, returnable to a regular term of Fulton superior court, filed by "Hattie Orr, individually and as life-tenant and as trustee under item ten of the will of Joseph K. Orr Sr., and The First National Bank of Atlanta, as trustee under item ten of said will of Joseph K. Orr Sr." The petition named as defendants: "Mrs. Caroline Moore Orr, Lawrence E. Grant, and Samuel N. Evins, as executors of the will of Joseph K. Orr, deceased; Mrs. Frances Orr Vance; Joseph K. Orr III; Miss Caroline M. Orr; Robert B. Vance Jr.; and Harriet Vance." Item ten of the will of Joseph K. Orr Sr., as set out, reads as follows: "The lot or parcel of land with the improvements thereon, fronting on the northern side of Auburn Avenue fifty-one and one-half (51 1/2) feet, known as Nos. 30-32 Auburn Avenue in the City of Atlanta, Georgia, and being the property conveyed to me by J. K. Orr Shoe Company by deed dated the 15th day of May, 1930, I give, devise, and bequeath to my son, Joseph K. Orr Jr., and my daughter Hattie Orr, equally, during their lives, with remainder over to The First National Bank of Atlanta, Georgia, as trustee, in trust for the children of my said son, Joseph K. Orr Jr., and the descendants of any child of my said son who may die prior to the termination of the trust, subject, however, to the following provisions, to wit: (a) The entire net income from said property shall be the gross rentals less taxes, insurance, repairs, assessments, commissions, and other charges against the property. (b) The net income shall be equally divided between my son, Joseph K. Orr Jr., and my daughter, Hattie Orr, during their lives, and upon the death of either, his or her share of the income shall go to his or her administrator or executor during the life of the survivor. (c) Upon the death of the survivor the said property shall go to The First National Bank of Atlanta, Georgia, as trustee, in trust for the following uses and purposes, to wit: The net income from said property, as herein defined, shall be paid monthly to the surviving parent or guardian of the children of my son, Joseph K. Orr Jr., until such children attain the age of twenty-one years. As each child attains the age of twenty-one years, his or her share of the net income shall be paid direct to him or her. If any child of my said son shall die before the youngest child of my said son becomes twenty-one years of age, leaving a child or children surviving, the share of the net income that would have gone to my son's child if he or she had lived, shall go to the child or children of the deceased child of my said son. When the youngest child of my said son becomes twenty-one years of age, or when such child would become twenty-one years of age, if living, the fee-simple title to said property shall vest in the then surviving children of my son, Joseph K. Orr Jr., and the descendants of any deceased child of my said son, the descendants of a deceased child to take per stripes, but if there are any such descendants who are minors, the trustee shall continue to hold their interest in the property until each descendant becomes twenty-one years of age, the income due such descendant in the meantime to be used for their education and maintenance, and the trustee shall have the authority to join with the other owners in any lease or sale of said property and for that purpose to execute the necessary lease, contracts, deeds, and other conveyances to bind and transfer the interest in such minor descendants. My said son and daughter, or the survivor, shall have the right to lease the said property for any term without regard to the termination of their life-estate, and The First National Bank of Atlanta, while holding the said property as trustee, shall have the right to lease the same for any term without regard to the termination of the trust estate."
It is alleged in substance as follows: That Miss Caroline M. Orr, Robert Vance Jr., and Harriet Orr Vance are minors; that the others of the named defendants are of age and suffering under no disability; that Joseph K. Orr Sr. died a resident of Fulton County, Georgia; that his will has been duly probated in solemn form; and that the executors have completed the administration, have assented to the devises contained in his will, and have received their discharge. Joseph K. Orr Jr. died a resident of Fulton County, Georgia; his will has been duly probated in solemn form; Mrs. Caroline Moore Orr, Lawrence E. Grant, and Samuel N. Evins qualified and are now acting as executors of his will; Frances Orr Vance, Joseph K. Orr III, and Miss Caroline M. Orr are all children of Joseph K. Orr Jr. Robert B. Vance Jr. and Harriet Vance are children of Mrs. Frances Orr Vance, and are all of the grand-children of Joseph K. Orr Jr. now in being; Joseph K. Orr Jr. and Hattie Orr were all of the heirs at law of Joseph K. Orr Sr. The petitioners have received an offer for a stated consideration to buy the property described in item ten of the said will. It is necessary that said building be extensively repaired and remodeled in order to make the same suitable for the uses for which its location and general character make it suitable. The petitioner, Hattie Orr, having only a life-estate, is not in position to make the necessary expenditures; and the petitioner, The First National Bank of Atlanta, as trustee as aforesaid, does not have the funds to make such expenditures. It is necessary that said property be sold in order that it may be remodeled and used to proper advantage and the proper value thereof realized. It is to the best interest of all parties that the property be sold, and that the proceeds be invested in certain named securities. The prayers are that Mrs. Frances Orr Vance, Joseph K. Orr III, Caroline M. Orr, Robert B. Vance Jr., and Harriet Vance, as children and grandchildren of Joseph K. Orr Jr., be appointed as representatives of the children and grandchildren of Joseph K. Orr Jr., born and to be born, as a class; that guardians ad litem be appointed to represent the minor children named, born and to be born, as a class; that an order be granted, authorizing and directing the petitioners to sell an absolute fee-simple title in and to the said property upon the terms and conditions set out; and that they be allowed to reinvest the proceeds in the securities named in the petition under the same terms, conditions, limitations, and uses as are set out in item ten of the will of Joseph K. Orr Sr.
The defendant, Joseph K. Orr III, filed a general demurrer to the petition. which was overruled, and the exception is to that judgment.
"A trustee, unless expressly authorized by the instrument creating the trust, shall have no authority to sell or convey the corpus of the trust estate, but such sales shall be by virtue of an order of the superior court upon a regular application to the same." Code, § 108-408.
In Richards v. East Tenn., Va. Ga. Ry. Co., 106 Ga. 614 (1, 2) ( 33 S.E. 193, 45 L.R.A. 712), this court said: "The jurisdiction of equity over the estates of wards of chancery is broad, comprehensive, and plenary. When one holds title to realty in trust for the benefit of a mother and her minor children during the life of the mother, but is not clothed with the title to the legal fee in remainder which vests in the children, he may apply to a court of equity for a sale of the entire property, including the legal as well as the equitable estate, the purpose of the application being for the benefit of the children as well as the mother. The moment such an ex parte petition comes before the chancellor and discloses the fact that the legal as well as equitable estate of infants is involved, they become his wards, and the case is one concerning `an estate of the wards of chancery;' and accordingly the chancellor has jurisdiction to grant in term an order to sell the entire property, the minors being properly made parties and represented before him." See also, Reed v. Alabama c. Iron Works, 107 Fed. 586; Ethridge v. Pitts, 152 Ga. 1 ( 108 S.E. 543); Penton v. Myers Park Place Corp., 152 Ga. 71 ( 108 S.E. 462). The above language was quoted with approval in Hopkins v. Martin, 153 Ga. 238 ( 112 S.E. 117).
Again, this court, in Cooney v. Walton, 151 Ga. 195 ( 106 S.E. 167), said: "A testator devised certain realty to his wife, `to have and to hold, for and during the term of her natural life, and, at her death, to vest in and belong in fee simple to my issue then living, said issue taking per stripes and not per capita; but if there be no such issue living at the death of my said wife, I devise the real estate above mentioned, together with all the remainder of my property,' to named persons. Included in the realty was a city lot on which there were buildings that were in need of repair and could not be rented advantageously. While the life tenant was yet in life and while the only issue of the testator was an adult son who was childless, the widow instituted an equitable suit against the son and the other contingent remaindermen specified in the will. The object of the suit was to have a decree for sale of the property, including every possible interest of contingent remaindermen in esse or any possible future issue of the testator's son, for reinvestment under the same limitations as provided in the will. Held, that the court had jurisdiction of the parties and subject-matter, and the decree was binding upon all parties to the suit and upon any unborn issue of the son of the testator who might be in life at the death of the life-tenant."
Discussing the broad jurisdiction of equity of the estates of wards of chancery, this court in Sangster v. Toledo Manufacturing Co., 193 Ga. 685, 691 ( 19 S.E.2d 723), said: "That the jurisdiction of equity of the estates of wards of chancery is broad, comprehensive, and plenary, can not now be questioned, was the pronouncement of this court in the Richards case, supra, and authorities were there cited to support the statement. When this jurisdiction attaches, the court's action is not limited by any narrow bounds, but it is empowered to stretch forth its arm in whatever direction its aid and protection may be needed. 19 Am. Jur. § 151, and cit. It may order a sale or partition when such would be for the best interest of the ward, or confirm a sale or a partition which is beneficial to such interest, although the same might be subject to such infirmities as ordinarily would avoid it. It can in a variety of circumstances make an election on his behalf, after having ascertained, through an inquiry, what action is best for his advantage."
The plaintiff in error recognizes the rulings above cited, but in his brief says: "However, the facts in these cases are not identical with the facts in the case in question, for this court has before it a different situation in that Miss Orr holds the life-estate in trust for herself and the estate of her brother, and The First National Bank of Atlanta holds the remainder estate for the children of Joseph K. Orr Jr." It appears that there is no sound reason in logic or law why the principles of law as laid down in the cases above cited should not be applied to the facts alleged in the present petition. The instant case was a term-time proceeding. Every person son who had any possible interest in the property was made a party, and guardians ad litem were appointed for the minor children. The interests of minors, who are wards of courts of equity, were involved. Therefore, the superior court, a court of equity jurisdiction, under the facts alleged in the petition, had jurisdiction to enter an order or decree for the sale of the property, including the fee-simple title thereto, for the purpose of reinvestment, as prayed, and it was not error to overrule the general demurrer.
Judgment affirmed. All the Justices concur.