THOMPSON et al. v. HALE et al.

Supreme Court of Georgia1905-06-15

123 Ga. 305

Summary · law.co

Holding. The superior court properly appointed a trustee to manage the charitable property, as the deed created a trust without granting the original trustees power to name successors, and no legislative authority authorized trustee succession. Judgment affirmed.

A deed from Barrow conveyed property to the trustees of Smithville Academy and officers of a Masonic lodge for educational, masonic, and potentially church purposes, with a reversion clause if the land ceased to be used for those purposes. The defendants, claiming to be the current board of trustees, sought to manage the property, but they failed to establish lawful authority for their positions. The court found that the original deed did not authorize the trustees to appoint successors, no legislative incorporation of the academy existed, and the defendants' reliance on a twenty-year custom of self-succession was insufficient to demonstrate legal authority.

The court characterized the situation as a charitable trust without a trustee, since the true beneficiaries are the local residents who benefit from the school, not the individual trustees. Because the original trustees no longer existed and the deed contained no power of appointment, the court determined that authority to appoint new trustees rested with the superior court exercising its equitable jurisdiction. The chancellor properly appointed a trustee to hold the property according to the donor's original intentions.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether trustees named in a deed had authority to fill vacancies without express grant or legislative authorization
Whether a charitable trust can exist without a trustee and whether courts may appoint one
Whether a custom of self-succession over twenty years establishes legal authority to hold and manage trust property

Procedural posture

The chancellor appointed a trustee to manage property held under a charitable trust, and the defendants appealed the appointment.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Evans, J.

(After stating the facts.) 1-3. It is reasonable to assume that at the time of the execution of the deed from Barrow to the trustees of the Smithville Academy and to the officers of the masonic lodge, the Smithville Academy had a potential existence and its affairs were administered by a board of trustees. The grant, therefore, was to the board of trustees then existing and to their successors in office. Conceding that the deed did not create the trust, but merely put the legal title of the property conveyed into the trustees and their successors, it does not follow that the trustees possessed the power to fill vacancies occurring in their board. A trust of this character can not be created otherwise than by grant or by legislative authority. It can not be created by grant unless property is conveyed. The legislature has the power to incorporate an academy and to authorize certain persons to act as trustees, and the act of incorporation may further provide for the filling of vacancies in the board of trustees; the courts will take notice of such legislative acts. But as the Gen eral Assembly has not incorporated the Smithville Academy or empowered any board of trustees to manage it and take charge of its affairs, and as no grant is shown, it would seem that there is no lawful authority for the trustees to name their successors or to fill vacancies occurring within the board. If we should construe this deed as creating a trust, the trustees at the time of the execution of the deed had no power to fill vacancies, the deed conferring no such power of appointment. We therefore conclude that as the legal title to the property was vested in the trustees filling the office at the time of the delivery of the deed, no power of appointing successors having been provided thereby, and there being no legislative authority authorizing the control and management of the academy by the trustees, the burden was shifted upon the defendants to • show the legality of their existence as a board of trustees with authority to manage the affairs of the school. This was not done. The evidence covered only, a period extending back twenty or twenty-two years, during which time it had been the custom of the board to fill the vacancies. This is insufficient to show authority in the present trustees either to hold title under the donor’s deed, or to manage the school affairs of that particular locality. The deed from Barrow was to the trustees of the Smithville Academy and their successors, and to certain officers of the Austin Lodge F. & A. M., and their successors, for the purpose of education and masonry, and also for a church, “if ever built.” There was a provision in the deed that when the premises ceased to be used for church, school, or lodge purposes the land would revert to the grantor and his heirs. It is clear that the grantor intended that the persons holding the office of trustees of the academy, and the officers of the lodge should hold the property, not for their own individual benefit, but for school and masonic uses. The designation of the trustees by their official character is equivalent to naming them by their proper names. Inglis v. Sailors Snug Harbor, 3 Pet. 114. When the trustees died the title did not descend to their heirs; nor was there a reversion of the land to the grantor or his estate, so long as the premises are used for the purposes specified. The petition alleges that the masonic lodge had abandoned all interest they might claim under the deed, but the land is still used for school purposes. The case made is that of a charitable or elfee mosynary trust without a trustee; and in such cases it is within the power of the superior court to nominate a trustee or trustees to hold the property for the uses declared in the donor’s deed. Civil Code, §§4008, 4009.; Beall v. Fox, 4 Ga. 404. The beneficiaries under the deed are not the trustees, but all the persons living in the locality of the school who might avail themselves of its educational advantages and opportunities. As the deed did not confer the power of appointment, and the original trustees are no longer in existence, the power of appointing trustees vests in the superior court exercising equitable jurisdiction. This power of appointment may be exercised by the chancellor upon the petition of the beneficiaries of the trust. Civil Code, §§ 3178, 3195, 3197, and 3199. The chancellor exercised this power in the present case, and, we think, properly so, under the facts as they appear in the record.

Judgment affirmed.

All the Justices concur, except Simmons, C. J., absent.