Gilmore v. Gilmore , 201 Ga. 770 ( 1947 )

The powers conferred by the testator in his will upon the person named as executor and as trustee of his estate, being powers which were personal and discretionary, and not imperative or mandatory, did not attach to the office of trustee, and could not be exercised by a successor trustee.

(a) Where such testator by another item of his will conferred upon the named executor and trustee the authority to provide by will for a successor trustee "to handle the estate" for a specified period of time, but without providing that such successor trustee should exercise the same powers lodged in the original trustee, the trustees appointed by the will of the original trustee, "with all the powers lodged" in him by the will under which he was appointed trustee, did not become vested with such authority.

No. 15661. JANUARY 9, 1947. John D. Gilmore of Hancock County, Georgia, died on March 7, 1943, leaving a will which was duly probated, and in which he named his brother, Thomas W. Gilmore, as executor and trustee of his estate.

Item one provided: "I give, bequeath, and devise to my brother, Thomas W. Gilmore, my entire estate of every kind and character, upon the uses, trusts, limitations and conditions hereinafter stated and imposed, that is to say: My said named trustee shall pay to my wife, Polly Gilmore, as soon after my death as practicable, the sum of fifteen hundred dollars ($1500) in cash, and shall pay from and out of my estate to my said wife the further sum of two hundred twenty-five dollars ($225) per month for and during her natural life. It is my will also that my wife shall have my automobile, and all household and kitchen furniture, with the exception of certain articles of furniture given to me by members of my family, which I bequeath to my nephew, Tommy Gilmore. She shall have the right to occupy the residence where we now reside as long as the farm upon which it is located shall be owned by my estate. The provisions herein made for my wife are in lieu of dower and year's support, and/or either. Should my wife take dower and/or year's support, then it is my will and desire that she shall have no further interest in my estate and shall not receive the legacy provided for in this item, or the bequeath [sic] of the monthly amounts above stated, but the whole of my estate, in such event, over and above dower and year's support shall pass to the beneficiary named herein, and upon the conditions and limitations set forth in this my will."

Item two provided: "My said brother, Thomas W. Gilmore, shall have, hold, and possess my entire estate, except as provided in the foregoing item, subject to the charge in favor of my wife set forth therein, and on the conditions stated, that is to say, he shall, after my death, hold the same for the benefit of his child and any child or children that may be born to him in the future, and at the death of my said brother the remainder of my said estate shall become the property of any child or children that he may leave, subject to the charge in favor of my wife heretofore provided. Children shall include the descendants of any deceased child per stirpes. During the existence of the trust estate, that is to say, during the life of my wife and my said brother, after the charge placed upon my estate in favor of my wife is satisfied, my said brother, Thomas W. Gilmore, shall have, during his life, the income upon my said estate as long as he may live. He may provide by will, in case of his death, for a successor as trustee to handle the estate during the life of my said wife and during the minority of any child, or children that may be living at his death."

Item five provided: "I hereby constitute and appoint my brother, Thomas W. Gilmore, as executor and trustee of this my last will and testament. I authorize and empower him to handle and manage my estate, to sell and invest, resell and reinvest, from time to time, any and all funds and property of my estate, without any order of any court, and without any advertisement of any character. In making investments he shall have the utmost liberty to choose any investments, and is not restricted to those in which trustees may invest under the statutes of this State. He shall have the power also to retain intact any properties of my estate in form and manner in which he may receive the same. It is my wish and desire that my (he?) may carry out any and all contracts, executory in their nature, which may be outstanding between me and third parties at the time of my death. He may make any sales of any part of my property, without order or advertisement, and may execute all necessary deeds, contracts, releases, cancellations, and generally do any and all things that he may deem necessary, or that I might do were I living, it being the scheme of my will that in the management of my estate my said brother shall have the same rights, powers, and privileges that I might have if I were living. I further relieve him from making any inventory, or from having any appraisement made of may estate. I also relieve him from making any returns to the court of ordinary."

John D. Gilmore left surviving him his wife, Polly S. Gilmore, but no child. His brother, Thomas W. Gilmore, survived him, but died on March 13, 1946, leaving a will which was duly probated, and in which he named Mrs. Winifred R. Gilmore, his wife, and E. W. Jordan, as executors and trustees of his estate, and also as trustees of the estate held by him as trustee under the will of his brother, John D. Gilmore. Besides his wife Thomas W. Gilmore left surviving him an only child, Thomas W. Gilmore Jr.

In the will of Thomas W. Gilmore, item two provided: "Under the second item of the will of my brother, John D. Gilmore late of Hancock County, deceased, said will duly probated in the Court of Ordinary of Hancock County, I am trustee under said will, with power to name a successor to handle the estate during the life of the widow, Mrs. Polly S. Gilmore, and during the minority of any child or children taking upon my death. I hereby constitute and appoint my wife, Winifred R. Gilmore, and my friend, E. W. Jordan, to act as joint trustees under the will of my said brother, John D. Gilmore, with all the powers lodged by said will in me, they to have, hold, and manage said trust estate as long as it may be required to carry out said will and all provisions of the trust."

Item three provided: "I hereby constitute and appoint my said wife, Winifred R. Gilmore, and my said named attorney, E. W. Jordan, as Joint executors of this my last will and testament, and as joint trustees upon my estate, and the estate held by me as trustee under the will of my brother, John D. Gilmore" and further provided that as executors and trustees they shall have certain powers in the handling and management of his own estate.

On May 29, 1946, Mrs. Winifred R. Gilmore and E. W. Jordan, as executors and trustees under the will of John D. Gilmore, filed in the Superior Court of Washington County, Georgia, a petition, naming as defendant Thomas W. Gilmore, Jr., a minor 15 years of age, and Mrs. Polly S. Gilmore, the widow of John D. Gilmore, deceased, residents of said county; the petition as amended alleging the facts above set forth and attaching copies of the wills of John D. Gilmore and Thomas W. Gilmore. It was further alleged: Thomas W. Gilmore, the appointed and qualified executor and trustee under the will of John D. Gilmore was serving in such capacity at the time of his death on March 13, 1946. The petitioners are now serving as executors and trustees under the will of Thomas W. Gilmore. Under the power granted in the will of John D. Gilmore to Thomas W. Gilmore and the exercise of that power by him, the petitioners were appointed by the said will of the said Thomas W. Gilmore to act as joint trustees under the will of John D. Gilmore, with all the powers lodged by the will of John D. Gilmore in Thomas W. Gilmore, to have, hold, and manage said estate so long as it should be required to carry out the said will and all the provisions of the trust; and they are by succession executors of the last will and testament of John D. Gilmore, and are trustees under the said will by appointment in the will of Thomas W. Gilmore, he being authorized in the former will to select his successor. The petition then alleged in particulars the creation of an executory trust by the will of John D. Gilmore, and particularly referred to the attached copy of the will of John D. Gilmore for all of its terms and provisions, and alleged that the estate of John D. Gilmore was involved in complications, the details of which were set forth, all of which required for its proper management a great deal of attention and diligence upon the part of the representatives and trustees thereof. It was further alleged that under the will of John D. Gilmore the petitioners believe that as trustees they have all the power and authority and privileges which the original executor, Thomas W. Gilmore, had and possessed; but that questions have arisen and are arising as to whether these powers conferred by the will of John D. Gilmore on Thomas W. Gilmore were powers which followed the office of executors and trustee, or powers which were conferred entirely upon and confined to Thomas W. Gilmore, the original executor and trustee; and that in their efforts to rent, lease, or sell any of the property, which it is necessary to do in order to properly handle and manage the estate, doubts are expressed and uncertainties exist as to whether they can do so without court orders, which if necessary to obtain would place upon the estate much cost and expense, and upon the petitioners much trouble, difficulty, and delay in handling and managing the estate. Thomas W. Gilmore Jr. is the son of Thomas W. Gilmore, deceased, and owns the entire estate of John D. Gilmore at this time, under his will, subject to the charge in favor of Mrs. Polly S. Gilmore; but, while he owns the said estate, the petitioners are trustees thereof during his minority and, he being entitled to the income thereon, the petitioners seek and desire to know whether they can directly expend from the income from the estate of John D. Gilmore all necessary sums for his support, maintenance, and education. The petitioners under the will of Thomas W. Gilmore were clothed with the same power and authority which he himself had under the will of John D. Gilmore, and they allege that the said Thomas W. Gilmore had the right, under the will of John D. Gilmore, to bestow such authority and power upon the petitioners, and that it was a valid exercise of his power under the Declaratory Judgment Act of the General Assembly, approved February 12, 1945, by the petitioners as executors of the estate of John D. Gilmore to settle the question arising in the administration of the estate or trust, and to include a construction of the will of John D. Gilmore, and that it be declared and decreed by judgment: 1. That the petitioners as executors and trustees under the will of John D. Gilmore possess and have the same powers in reference to the handling and management of his estate that were conferred by the said will upon the original executor and trustee, Thomas W. Gilmore. 2. That the court adjudge that the petitioners are authorized, as trustees, from the income of the estate to supply funds for the education, maintenance, and support of Thomas W. Gilmore Jr., with or without the intervention of a court as this court may direct, one of the petitioners, Winifred R. Gilmore, being the mother of the said minor and being in law his natural guardian. 3. That it be decreed that Thomas W. Gilmore in his will had the authority to bestow upon the petitioners, as his successors in trust, all the powers which he himself had, lodged by the will of John D. Gilmore in him. 4. That any and all other and further relief and directions be given to the petitioners by the said declaratory judgment as may be meet and proper to achieve the full purpose expressed in the Declaratory Judgment Act in reference to the subject-matter set forth herein. 5. That a guardian ad litem be appointed for Thomas W. Gilmore Jr., to represent him upon the hearing in this case. 6. That the court enter an order fixing the time for hearing and order the clerk to issue process requiring the two named parties at interest, the said Thomas W. Gilmore Jr. and Mrs. Polly S. Gilmore, to be and appear at such time and place and show cause, if any they have, why the relief sought and the type of judgment sought in this proceeding should not be granted.

On May 29, 1946, F. B. Rawlings was appointed by the court guardian ad litem for Thomas W. Gilmore, Jr., and it was ordered that he be served with copy of the petition and process. On May 31, 1946, Thomas W. Gilmore Jr. was served with a copy of the petition and process. On the same day Polly S. Gilmore acknowledged service of a copy of the petition and process. On June 3, 1946, F. B. Rawlings accepted in writing the appointment of guardian ad litem and acknowledged service of a copy of the petition and process, agreeing that the judgment sought be entered.

On June 27, 1946, Mrs. Polly S. Gilmore filed an answer in which she denied that the powers vested in the original trustee, Thomas W. Gilmore, became vested in the successor trustees, and she prayed that the court determine and decree that they did not. Other allegations and prayers included in the answer are omitted here as unnecessary for consideration under the sole exception, hereinafter noted, of the plaintiffs in error to the judgment of the court.

The case was heard on the pleadings and facts above set forth and certain evidence introduced as to the status and nature of the estate of John D. Gilmore, which latter it is unnecessary to set forth for a ruling on the assignment of error. The court rendered judgment as follows: "1. That Mrs. Winifred R. Gilmore and E. W. Jordan, as executors and trustees of the estate of John D. Gilmore, by appointment in the will of Thomas W. Gilmore, do not as such successors, trustees, have the various and several powers conferred by the will of John D. Gilmore upon Thomas W. Gilmore, as trustee in his, the said John D. Gilmore's, will, and that the first prayer of plaintiffs' petition is hereby denied. 2. (Decree as to support, education, and maintenance of Thomas W. Gilmore Jr.)

The exception here is to that part of the judgment holding that the petitioners do not as successor trustees have the various and several powers conferred by the will of John D. Gilmore upon Thomas W. Gilmore as trustee. The sole question here presented is whether or not the successor trustees appointed under the will of Thomas W. Gilmore became vested with the same powers lodged in him by the will of his brother, John D. Gilmore, as to the management and control of his estate.

It is the established law of this State that, where the powers conferred by deed or will upon a trustee in the management and control of property for named beneficiaries are personal and discretionary to the trustee, such powers can not be exercised by a successors; but that, if the exercise of the powers so conferred is imperative or mandatory in all events, the powers are incident to the office and may be exercised by a successor trustee, whether appointed by the court or provided for in the trust instrument. Freeman v. Prendergast, 94 Ga. 369 (21 S.E. 837); Henderson v. Williams, 97 Ga. 709 (25 S.E. 395);Simmons v. McKinlock, 98 Ga. 738 (1) (26 S.E. 88);Bailie v. Carolina B. L. Asso., 100 Ga. 20 (28 S.E. 274); Heath v. Miller, 117 Ga. 854 (44 S.E. 13); Luquire v. Lee, 121 Ga. 624, 629 (49 S.E. 834); Maynard v.Greer, 129 Ga. 709 (2) (59 S.E. 798); Vernoy v.Robinson, 133 Ga. 653 (66 S.E. 928). Upon an application of this rule to the facts of the present case the conclusion is irresistible that the successor trustees named in the will of Thomas W. Gilmore were not vested with the broad powers conferred upon him as trustee by the will of John D. Gilmore, though it is clear, by item two of the will of Thomas W. Gilmore, that he attempted to confer upon the petitioners as successor trustees of the estate of John D. Gilmore "all the powers lodged by said will" in him. This conclusion is induced by the fact that the powers vested in Thomas W. Gilmore by item five of the will of John D. Gilmore are obviously personal and discretionary to the named trustee, his brother, and in no wise mandatory or imperative as an incident to the office of trustee. Nor, under the principle that in determining the nature and extent of a power given in a will the intention of the testator, as gathered from the whole instrument, must be given effect, does the language in item five of the will of John D. Gilmore, "generally do any and all things that he may deem necessary, or that I might do were I living," authorize the inference that the powers conferred upon Thomas W. Gilmore as trustee were such as included the right in him to appoint a successor trustee with all the powers lodged in him. Since these words of general import follow the designation of specific powers which are clearly personal and discretionary to the trustee named in the will of John D. Gilmore, they are to be construed to have been used, not in the broad sense which they might have if standing alone, but, under the applicable ejusdem generis rule, as related to the preceding language delegating more definite and particular powers. See Fleming v. Rome, 130 Ga. 383, 386 (61 S.E. 5). As stated in Beavers v. LeSueur, 188 Ga. 393,403 (3 S.E.2d 667), "It is a well-recognized rule of construction that when a statute or document enumerates by name several particular things, and concludes with a general term of enlargement, this latter term is to be construed as being ejusdem generis with the things specifically named, unless, of course, there is something to show that a wider sense was intended." So construed, the general authority is one relating to the discretionary routine administration and control, in the lifetime of Thomas W. Gilmore, of the estate of John D. Gilmore, and not an authority under which Thomas W. Gilmore might appoint by will a successor trustee with all the powers lodged in him that were conferred by John D. Gilmore upon his brother, Thomas W. Gilmore. It is to be noted that, immediately following the language just quoted, the testator provided that it was the scheme of his will that in the management and control of his estate his "said brother" shall have the same rights, powers, and privileges that the testator might have if in life, thus evidencing by his choice of the words, "my brother," instead of using the word "trustee," that the grant of the broad powers was in consideration of the close relationship between him and his brother and his confidence in his brother. In item two he provided that Thomas W. Gilmore might by will name a successor trustee "to handle the estate during the life of my said wife and during the minority of any child, or children that may be living at his death," but without adding, as he doubtless would have done if he had also desired that the powers vested in his brother, Thomas W. Gilmore, be equally vested in a successor trustee, "with all the powers vested in my brother, Thomas W. Gilmore." The provisions of the will of John D. Gilmore are plain and unambiguous, and however desirable it might appear from evidence introduced that the management and control of his estate be continued by the successor trustees under the broad powers which had been lodged in the original trustee, such parol evidence can not be received for the purpose of showing an intent contrary to that plainly manifested by the unambiguous language of the will itself. Hungerford v. TrustCo. of Georgia, 190 Ga. 387 (9 S.E.2d 630); Snellings v.Downer, 193 Ga. 340 (18 S.E.2d 531).

Counsel for the plaintiffs in error concede that the rule of law we have followed is in conformity with the common law, but contend that the authority of the successor trustees to exercise the powers lodged in the original trustee is to be found in an act of 1937 (Ga. L. 1937, p. 481), amending the Code, § 37-607. As it appears in the supplement to the Annotated Code of 1933, the Code section as amended, 37-607, provides: "Powers of sale in deeds of trust, mortgages, and other instruments shall be strictly construed and shall be fairly exercised. [In the absence of stipulations to the contrary in the instrument,] the time, place, and manner of sale shall be that pointed out for public sales. Unless the instrument creating such power specifically provides to the contrary, a personal representative, heir, heirs, legatee, devisee, or successor of the grantee in a mortgage, deed of trust, deed to secure debt, bill of sale to secure debt, or other like instrument, or an assignee thereof, or his personal representative, heir, heirs, legatee. devisee, or successor may exercise any power therein contained." It is urged by counsel for the plaintiffs in error that the statute makes powers of sale applicable to "deeds of trust" and "other like instrument," and vests in the successor to the grantee in the instrument "any power therein contained," and that the statute applies to powers in wills that do not provide "specifically to the contrary." The Code section which was amended by the act of 1937, supra, is a codification of language used in Calloway v. People's Bank, 54 Ga. 441, 450, which case dealt with a mortgage containing a power of sale in the event of non-payment of the debt secured, and not with an instrument where, as in the present case, the property was forever alienated. The principle announced was codified in a section under a title that is now Title 37-6 of the present Code, which was formally adopted by the General Assembly by an act approved on February 14, 1935, as prepared and arranged by titles by the Code commissioners duly appointed. This Title 37-6 deals with the principles of equitable relief and grounds for the objects of such relief, as pointed out in the brief of counsel for the defendants in error; and the Code section as amended by the act of 1937, supra, is applicable only to instances where a creditor is seeking to sell property to enforce the payment of a debt or demand secured by such an instrument as is referred to in the Code section as amended. If, as suggested by counsel for the plaintiffs in error, this section as amended should be construed to embrace an instrument like that here involved, a will forever disposing of the property of the testator after death, and providing, without more, for the appointment of a successor trustee, and it be said that such successor trustee should thereby be vested with all the broad powers of the original trustee, it might be urged with equal plausibility that a personal representative, heir, legatee, or devisee would likewise succeed to all such powers. However, the language of the act of 1937, supra, forbids any reasonable construction other than that the words, "other like instrument," refer to an instrument of the same specific nature as those enumerated immediately before such language — instruments which are given as security for a debt or demand and conferring the power to enforce payment — and not instruments creating trusts and manifesting an intention to forever alienate the property which is the subject-matter of the trust. This view is reinforced when we observe that the subject-matter of a trust as here involved, and the powers, duties, and liabilities of a trustee are codified in a separate Title of the Code, to wit, Title 108.

It is also urged by counsel for the plaintiffs in error that, if the above-stated Code section as amended is not conclusive on the question here presented, Freeman v. Prendergast, 94 Ga. 369 (21 S.E. 837), Coleman v. Cabaniss, 121 Ga. 281 (48 S.E. 927), and Wadley v. Jones, 138 Ga. 223 (75 S.E. 325), are authority for the contention that the successor trustee here became vested with all the powers of the original trustee. It is true that in each of the cited cases the powers in question were held to have developed upon the successor trustee, but the facts are quite dissimilar to those in the present instance, and the rulings there do not require a ruling different from that here made.

Judgment affirmed. All the Justices concur, except Wyatt, J.,who dissents.