Gardner v. Weeks , 32 Ga. 696 ( 1861 )

By the Court.

Jenkins, J.,

delivering the opinion.

The demurrer to the bill of plaintiff in error was upon the ground, that there is no equity in the bill, and that under the law, and the will of John H. Weeks, complainant is not entitled to the relief sought.

The property embraced in the bequests consists of shares and money.

The bequests are to the testator's sister (Martha) for life, to her sole, separate use, with remainder to her children.

1. There is no trustee named in the will, and hence the executor insists, that the trust devolves upon him to appropriate the income to the sole and separate use of the said Martha during her life, and to preserve the corpus to be divided among her children, upon her death. It is true, that were this property to remain in the hands of the executor, a Court of Equity would hold him responsible as trustee, just as it would the husband of the usee for life, should it pass into his hands without any special apppointment as trustee.

But this is a case in which the testator has created, in point of fact, a trust without appointing a trustee.

Every executor is, in one sense, a trustee for creditors, legatees and devisees. Equity raises this trust, from the duties imposed by the terms of the will; but these duties are to pay the debts and legacies and turn over the property bequeathed or' devised, and upon the performance of them, the trust ceases. Unless so expressed, an executor is not a continuing trustee. In this case, there are no words in the will indicating that the executor should hold the property in trust, after the estate shall have been prepared for final distribution, and yet there is a manifest propriety, if not a necessity, for the office of trustee.

2. Under these circumstances, the husband of the usee for life has applied to a Court of competent jurisdiction, and procured, with the assent of his wife, the appointment of himself as trustee, to carry into effect the intentions of the testator. In that character he files his bill in the Court having jurisdiction against the executor, setting forth the facts of the case, exhibiting the evidence of his appoinment, praying that the executor be compelled to deliver the property to him, and offering to submit to such reasonable terms and conditions as the Court may, by its decree, impose. The Court may enquire into his fitness for the office of trustee— may, in the exercise of a sound discretion, require him to enter into bond, with security for the faithful execution of the trust.

Under these circumstances, we think, that upon satisfying the Court that the estate will be safe in his hands, and the intention of the testator carried into effect, he is entitled to a decree for the property. The demurrer should have been overruled

Let the judgment be reversed.