McDonald v. Valdosta Investment Co.
McDonald v. Valdosta Investment Co.
Opinion of the Court
This case turns mainly upon the construction of the will of Henry E. Moore, which was dated June 18, 1861, and was probated in solemn form on December 26, 1862. The items of the will necessary for a proper determination of this case are as follows: “Item I. I do hereby constitute and appoint my mother (Mrs. Mary Moore) my executrix. She is hereby vested with full power to pay all my liabilities which have accrued to me since coming to this county, to collect all debts due me and receipt for the same, and to buy and sell property at any time she may deem fit, and to take control of all my affairs the same as her own, without any application or returns to be made to the regular courts of law regulating such cases; to pursue such course with my affairs as if I were personally present and performed the same. Item II. I desire my mother to be appointed guardian of my children (Alice M., Henry E., and Georgia A. Moore), and that she be vested with full power over their persons and property that is now guaranteed or vested in myself, and to manage and control their persons and their property as she deems best for their interests, with as full power as item 1st.”
The present case is an action of ejectment brought by the plaintiff, George C.- McDonald, against the Yaldosta Investment Company, to recover one twelfth undivided interest in the land sued for. Plaintiff claims title as an heir at law of his mother, Georgia A. (Moore) McDonald. The evidence for the plaintiff tended to show that Georgia Moore was the daughter of Henry E. Moore, the testator, and that she was born January 19, 1860, and died April 4, 1884, and there had been no administration on her estate. She
It is insisted that the defendant’s title depends on the validity of the order of the judge of the superior court, purporting to authorize Mrs. Mary Moore, as trustee, to sell the property in controversy. It is argued that prior to the act of 1889 judges of the superior court had no authority to grant in vacation an order to a guardian to sell the lands of his ward, and that a deed executed under a sale thus granted is void. See Mills v. Geer, 111 Ga. 276 (3), 291 (36 S. E. 673, 52 L. R. A. 934). Under the view we take of this case, it is immaterial whether the order of the judge of the superior court to sell was granted in vacation or not, or whether the guardian was appointed statutory guardian and sold the land by virtue of an order obtained in that capacity. Under the terms of the deed from Peeples to Mary Moore, the trustee, she was vested with the “same limitations, restrictions, and powers as are allowed, directed, and contained in the last will and testament of the said Henry E. Moore, deceased.” And the will conferred on her the authority “to buy and sell property at any time she may deem fit, and to take control of all my affairs the same as her own, without any application or returns to be made to the regular courts of law regulating such cases; to pursue such course with my affairs .as if I were personally present and performed the same.” This language is broad and comprehensive, and under its terms we think the trustee had full power to sell and dispose of any of the property of Henry E. Moore, without an order of court, or irrespective of whether the trustee was appointed statutory guardian and sold it as such. Under the powers conferred by the deed and will, the trustee could sell any of the testator’s property the same as he could if living. It follows that if she had these powers under the will of the testator, she had the same powers as to the land in controversy under the deed from Peeples to her, as trustee for Henry, Alice, and Georgia Moore, the latter being the mother of the plaintiff. The same powers are expressly given to the trustee in the deed as were given by the will of H. E. Moore, and the deed is to be construed as if the language of the will were incorporated in the deed. See 6 Am. & Eng. Enc. Law, 516. It appears from the evidence that Mary Moore, as trustee for the mother of the plaintiff, and for her brother and sister, sold the property conveyed by Peeples to one Wisenbaker, and executed
Judgment affirmed.
Reference
- Full Case Name
- McDonald v. Valdosta Investment Company
- Cited By
- 1 case
- Status
- Published