Woodbery v. Atlas Realty Co. , 148 Ga. 712 ( 1919 )

Gilbert, J.

(After stating the foregoing facts.) '

1. In construing a deed the entire instrument must be looked at, and all parts construed together, in order to determine the 'intention of the maker, without special regard to the formal arrangement of the deed. The interpretation should be such as will effectuate the intention, and it is proper to seek for a rational purpose by construing the deed consistently with reason and common sense. If there is any doubt as to the real intention, an interpretation which plainly leads to injustice should be rejected, and one which conforms more to the meaning of the grantor, and does not produce unusual and unjust results, should be adopted. Williams v. Williams, 175 N. C. 160 (95 S. E. 157); Anderson v. Stuart (Ill.), 121 N. E. 198, 201 (5) and authorities cited; Civil Code (1910), § 4187.

In deeds, as in all other contracts,' none of the words are to be considered as redundant, if a reasonable intendment can be given them. This deed would have completely conveyed an equitable interest in the life-estate, and constituted a trustee therefor, without that provision in the habendum clause to the effect that the trust property or trust fund is- to remain and continue in trust for the benefit of the wife during her natural life, and after her death to her children.. What was, therefore, the purpose of placing these additional words in the habendum clause? No legitimate purpose is conceivable except to provide for a continuance of the trust after the death of the wife, for. it is specifically stated that the trust property or trust fund is to remain and continue in trust for the wife and after her death to her children. If not intended to have this effect, these words are meaningless and sheer surplusage. The deed conveys the land to the trustee in trust “for the sole and separate use and benefit of . . E. Emma Woodbery during her natural life, . . and after her death to her children,” etc. The habendum clause provides that the trustee is to hold, “in trust for the purposes mentioned . . The trust property or trust fund is to remain and continue in trust for the sole and separate use and benefit of her, the said E. Emma Woodbery, for and during her natural life, . . and the trust property or trust fund, after the death of the said E. Emma Woodbery, to her children,” etc. At the date of the making of this conveyanee there - were no children born of the life-tenant. It is to be noted that the grantor provides that the trustee is to hold the land for the purposes, thus indicating more- than one purpose. Cuningham v. Calhoun, 135 Ga. 715, 718 (70 S. E. 574). The trust estate was not intended, under the deed, to vest automatically in the remaindermen upon the death of the life-tenant, but it was to continue in the trustee, who was to determine the persons entitled to receive it. The grantor contemplated that the real estate might be sold and at the death of the life-tenant might be in other real estate or in personal property. Eor that reason he provided that the trust property or trust fund was to -‘remain,” meaning that it was to remain in trust and be held by the trustee, who was to deliver the same in a manner to be determined according to its then condition and character. Disregarding all technical rules, it seems clear that it was the intention of the grantor to create a trust in behalf of the remaindermen, as well as the wife, and that the trustee represented all of the interests, and that the trust continued executory until after the death of the wife, for until then the possibility of issue was not extinct. In re Dougan, 139 Ga. 351, 353 (77 S. E. 158, 48 L. R. A. (N. S.) 868, Ann. Cas. 1914B, 868); Wadley v. LeCato, 139 Ga. 177 (77 S. E. 47). When thus executory, the trust was not executed as to any of its objects by reason of the married woman’s act of 1866. Cushman v. Coleman, 92 Ga. 772 (19 S. E. 46); Riggins v. Adair, 105 Ga. 727 (31 S. E. 743).

The deed in the Cushman case, just cited, was very similar to -the deed under construction here. It conveyed land in trust for the sole and separate use of a married woman during her natural life, and at her death “in trust to be equally divided in trust between children in life at her death,” etc. A difference between the two deeds is that the deed in this case provides that the trust property or trust fund remains and continues through the life-estate, and, after the death of the life-tenant, “to her children,” if any. In the one deed the expression “equally divided in trust” is used, while the other refers to the property as the “trust property or trust fund” to “remain and continue in trust.” As was said in the Cushman case, it must be said in the present ease, that “full title passed out of” the grantor. “Where did it vest? Certainly, in the trustee, so far as the life-estate was concerned. The legal title in remainder could not immediately vest in the remaindermen, for the reason . . that it was not and could not be known, at the time the deed was executed, who they would be. The legal fee should never be held to be in abeyance except when necessary; and we therefore think the proper construction of the deed before us requires us to hold that it clothed the trustee with full title, and that as to the remaindermen it should be considered as abiding in him until, upon the death of the life-tenant, the identical persons who were to take and enjoy the remainder could be definitely ascertained. Up to that time, therefore, the trust was executory, and the remainder was an equitable, and not a legal, estate. This view, in our judgment, is perfectly consistent with good law and sound common sense. So long as the trust was executory, the trustee represented the entire trust estate and all the beneficiaries, and it was his right to sue for and recover the property from any and all persons who might he unlawfully in possession of it. If he suffered a prescriptive title to ripen against him and thus bar-his right to recover, it is well settled by previous decisions of this court that the beneficiaries would likewise he barred.” See Jennings v. Coleman, 59 Ga. 718, 720.

2-4. The second, third, and fourth headnotes need not be discussed. The authorities therein cited are sufficient elucidation.

5. The power of sale contained in the deed authorized the trustee to sell the entire estate in the land, and E. Emma Woodbery as trustee therefore conveyed fee-simple title to her grantee under her deed of September 1, 1877. Section 3754 of our Civil Code declares : "Where a trust deed, or other, instrument, limits an estate in fee, for life or with remainders over, and in the same conveyance a power to sell, incumber, or otherwise dispose of the property is reserved or created, the power is to be construed to extqnd to a sale, incumbrance, or disposition of the fee, unless expressly or by necessary implication limited to a smaller estate.” It is impossible to find in the language of the deed under construction any express or implied limitation of the estate to be sold; and it necessarily follows that it was the intention of the grantor to create a power ^o sell the fee-simple estate. Headen v. Quillian, 92 Ga. 220, 222 (18 S. E. 543). The trustee having the power of sale with the written consent of the life-tenant, the trust subsisted for that purpose. Heath v. Miller, 117 Ga. 854, 857-859 (44 S. E. 13); Stiles v. Cummings, 122 Ga. 635, 640 (50 S. E. 484); Rosier v. Nichols, 123 Ga. 20, 24 (50 S. E. 988).

To construe the power of sale in this deed as authorizing the trustee to sell only the life-estate and to reinvest the proceeds subject to the trust would be to ascribe to the grantor a purpose to permit a reduction in the use of the life-estate by carving out of it another remainder and withholding it from the wife, his love for whom was the sole consideration for the deed. “It is a well-recognized fact that the uncertainty of life gives a life-estate a more or less speculative value.” In the case of Gunby v. Alverson, 146 Ga. 536 (91 S. E. 556), the trust deed conveyed the property to the daughters of the grantor or their children, and also provided a power of sale for purposes of reinvestment. This court held that the trust projected over the entire estate, and declined to place the decision “on the narrow technicality of the absence of the word ‘to’ in the conveyance to the grantor’s grandchildren.” In that case it was also said: “We wish to note that we have not overlooked the line of decisions, of which Fleming v. Hughes, 99 Ga. 444 (27 S. E. 791), may be cited as a type, that a conveyance to a trustee in trust for one for life, with remainder to the surviving children of the life-tenant, and, in default of such children, with remainder over to others, passes to the trustee the legal title of. the life-estate only. In such cases there were no complications as to indeterminate remaindermen, implied power of sale, and other indicia reflecting the grantor’s intention to convey the whole fee to the trustee.” It was also noted in the Gunby case that the deed contained no language restricting the trust to the life-tenants, as was the case in the devises under consideration in Bull v. Walker, 71 Ga. 195, Carswell v. Lovett, 80 Ga. 36 (4 S. E. 866), and McDonald v. McCall, 91 Ga. 304 (18 S. E. 157). A trustee may have and exercise a power of sale as to property or an interest therein to which he has not the legal title. Simmons v. McKinlock, 98 Ga. 738, 743 (26 S. E. 88); Henderson v. Williams, 97 Ga. 709 (25 S. E. 395); Headen v. Quillian, supra. In Coleman v. Cabaniss, 121 Ga. 281 (48 S. E. 927), it is held that this may be done when the trustee has neither the equitable nor the legal title. See, in this connection, Clarke v. East Atlanta Land Co., 113 Ga. 21 (4), 28 (38 S. E. 323); Bailie v. Carolina B. & L. Asso., 100 Ga. 20 (28 S. E. 274); Cabot v. Armstrong, 100 Ga. 438 (28 S. E. 123).

Judgment affirmed.

All the Justices concur.