Of trustees-their appointment, powers, etc.

In equity trustee may be appointed upon petition, when: 15 Ga.. 319. Receiver appointed pending application for removal, 16 Ga., 406. When removed: 14 Ga., 416; 25 Ga., 420; 26 Ga., 644; 33 Ga., 435. When removed his successor made a party: 28 Ga., 169; 30 Ga., 30. When appointed: 25 Ga., 420; 42 Ga., 95. Presumption in favor regularity of appointment: 28 Ga., 169. Husband appointed trustee, when: 30 Ga., 446; 32 Ga., 696; 33 Ga., 520, Also, Hill vs. Printup, January term, 1873.

$2321. (2295.) Courts may fill vacancies of trustees. [Whenever the office of trustee, in any incorporated company, may have or shall hereafter become vacant by death, resignation, or otherwise, and the same for any cause cannot be filled under the provisions of the charter of incorpo(b) Acts of 1865- ration, the Judge of the Superior Courts of the counties or judicial districts in which said incorporation may be situated, shall have power to fill such vacancies upon petition to said Judge of said Courts, showing the circumstances which render the appointment of a trustee, or trustees, necessary and proper.] (b.)

'66, p. 60.

(e) Acts of 1861, p. 32.

'56, p. 148.

§2322. (2296.) New assignees and trustees may be appointed. [In all cases of assignments for the benefit of creditors, heretofore or hereafter made, and in all cases of any trust, where the sole or surviving trustee, or assignee, shall have departed this life, or removed beyond the jurisdiction of the Courts of this State, the Superior Courts of the several counties in this State shall have full power and authority, when sitting either as a Court of law or equity, upon the petition of two or more of the parties interested in such assignment or trust, and on such notice as the Court shall direct, in a summary manner, to appoint a new trustee or trustees, in the place of such deceased or non-resident trustee; and such new trustee shall have all the authority, and be subject to all the pains and penalties of such deceased or non-resident trustee, or assignee; and all laws or enactments shall be as applicable, and in as full force in respect to the new as to the old assignee or trustee; and said Court may, in its discretion, require bond and security of such assignee or trustee.] (c.)

$2323. (2297.) Inventory by trustees. [It shall be the duty of all trustees, within three months after the trust property comes into their pos(1) Acts of 1855- session, to return to the Court of Ordinary where they reside, an inventory of all the trust property in their hands, received by them, which shall be recorded under the same regulations as inventories of administrators and executors.] (d.)

P. 148.

(e) Acts of 1860, p. 33.

$2324. (2298.) Returns to Ordinary. All trustees having in their Acts of 1855-56, hands a pecuniary fund, as a part of the trust estate, or receiving any sums of money as income or proceeds of such estate, shall make returns to the Ordinary, and receive commissions on such returns, under the same rules and regulations as are prescribed for guardians; and such returns, when allowed and recorded by the Ordinary, shall be prima facie evidence in their favor as to their correctness, [and if a trustee be dead his representatives may make his returns, as provided in case of deceased administrators.] (e.)

21823.

$2325. (2299.) Liability of naked trustees. A naked trustee, holding the title when possession of the property is with the beneficiary, is in no way responsible for its income or preservation, except where there are beneficiaries in remainder, or who are minors, and in such case he is responsible only for gross neglect.

§2326. (2300.) Duty of trustees. Trustees having possession of the trust property are bound to ordinary diligence in the preservation and protection of the same.

Ordinary diligence: 37 Ga., 205: 38 Ga.. S04: 39 Ga., 96, 569: 42 Ga.. 135. Receiving Confederate money: Ib. King vs. King, July term, 1872. Westbrook vs. Davis, January term, 1873.

Of trustees-their appointment, powers, etc.

$2327. (2301.) Sales by trustees. A trustee, unless expressly authorized by the Act creating the trust, or with the voluntary consent of all the beneficiaries, has no authority to sell or convey the corpus of the trust estate, but such sales must be by virtue of an order of the Court of chancery, Acts of 1853-'54, upon a regular application to the same. Such application may be made of 1855-56, p. 60. to the Judge in vacation, on full notice to all parties in interest, and the p. 146. order for such sale may be granted at chambers, the proceedings to be recorded as above provided, on application for appointment of trustees.

Formerly the Judge could not order such sale at chambers: 10 Ga., 429. Trustee may sellwhen: 1b. If a trustee buys or sells to himself: 14 Ga., 639; 17 Ga., 99. Sale to pay expenses of litigation for trust estate: 19 Ga., 285. Fraudulent sale by measure of damages: 20 Ga., 250; 24 Ga., 606. Sale by one trustee to another: 24 Ga., 591. See Hill vs. Printup, January term, 1873.

$2328. (2302.) The same. Sales by trustees, unless otherwise provided in the order, shall be made under the same rules and restrictions, in every respect, as provided for sales by administrators of estates.

$2329. (2303.) Purchaser with notice. The purchaser from a trustee, with notice actual or constructive of the trust, holds as trustee for the beneficiaries; if the purchase be bona fide, and without notice, the purchaser holds the property freed from the trust.

Stated in 7 Ga., 530: 19 Ga., 66; 40 Ga., 259; 41 Ga., 202; 42 Ga., 95. "Bona fides" defined: Westbrook vs. Davis, January term, 1873.

Acts

Act of

Act of 1861,

$2330. (2304.) Investment in stocks. Any trustee holding trust funds Act of 1845, C. may invest the same in stocks, bonds, or other securities, issued by this or 1860, State, making a true return of the price paid, and time of purchase. p. 31. Such investments shall be free from taxation so long as held for the trust Any other investments of trust funds must be made under an 1833. order of the Superior Court, either in term, or granted by the Judge in vacation, or else at the risk of the trustee.

estate.

Investment of funds: 6 Ga., 404. Investment changed by consent: 32 Ga., 566. What investment at his own risk: 38 Ga., 304. May show that they were prudent: Ib. Change of investment: Ib. This section embraces guardians; policy of this law: 39 Ga., 101. Investment in Confederate money: 42 Ga., 619. Westbrook vs. Davis, January term, 1873,

p. 32.

$2331. (2305.) May contract for labor. [Trustees may make contracts for labor or service with persons of color, or with white persons, for the benefit of the estates of their cestui que trust, upon such terms as they deem (a) Acts of 1866, best; and all such contracts, made in good faith, shall be a charge upon and bind said estates, whenever the same are approved by the Ordinary of the county.] (a.)

$2332. (2306.) Profits made. The trustee must not use the trust funds to his own profit. He is liable to account for all such profits made.

Stated in 38 Ga., 452.

$2333. (2307.) Following funds. The beneficiary of a trust estate may follow the funds wherever they can be traced, and at his option, may affirm or reject an unauthorized investment by the trustee.

$2334. (2308.) Disposition of income. Trustees are authorized, out of the income of the estate, to pay all debts incurred for its protection and preservation, and to appropriate a sufficiency of the balance for the support and maintenance of the beneficiaries of the trust. They cannot encroach upon the corpus of the estate, except by order of the chancery Court.

Stated in 9 Ga., 223: 13 Ga., 165; 17 Ga., 223; 25 Ga., 240. Expenses of litigation for: 19 Ga., 285. Individual note given for trust estate: 25 Ga., 240. Necessaries: 41 Ga., 598; 42 Ga., 57. Payment of debts of trust estate: 43 Ga., 327.

$2335. (2309.) Lien. Trustees are not authorized to create any lien upon the trust estate, except such as are given by law.

$2336. (2310.) Debts of cestui que trust. A beneficiary having pos

p. 87.

83152.

21785.

Act of 1853-54, p. 70.

22533, (4)

Act of 1859, p. 53.

Of trustees-their appointment, powers, etc.

session of the trust estate, or when the trustee fails or refuses to provide for its protection and preservation, or for the support and maintenance of the beneficiary, may, though a feme covert, contract debts for these purposes. The trust estate of such beneficiary shall be liable for the payment of such debts.

Trustee's property liable for-when: 27 Ga., 589.

$2337. (2311.) Sale by beneficiary. A beneficiary of a trust estate, of full age and of sound mind, may voluntarily sell and convey any portion of her interest in such estate to any person, except her husband or her trustee, and upon application to the Court, such sale may be confirmed, in the discretion of the Court, and the proceeds reinvested under order of the Court.

When valid: 11 Ga., 67. Cestui que trust might sell and mortgage in this case: 2 Kelly, 383. Sale by beneficiary to trustee: 11 Ga., 67.

$2338. (2312.) Lien on estates for trust funds. The estate of a trustee, dying chargeable with trust funds in hand, shall be appropriated, first to the payment of such indebtedness, after the funeral expenses, in preference to all other liens and claims whatever.

Rank of trust fund in distribution: 1 Kelly, 266; 5 Ga., 275; 10 Ga., 65; 18 Ga., 503; 30 Ga., 534 35 Ga., 184; 38 Ga., 75; 41 Ga., 322; 44 Ga., 306; 45 Ga., 468. Seabrook vs. Brady, January term, 1873.

$2339. (2313.) Acceptance of trust. The acceptance of a trust is necessary to constitute a person trustee: it may be done by acts, as well as words. After acceptance, no disclaimer will remove the character of

trustee.

Where there is no acceptance: 27 Ga., 309. After acceptance, cannot set up title adverse to trust: 45 Ga., 110. Disclaimer: 30 Ga., 770. Section cited: 42 Ga., 114,

§2340. (2314.) Extent of trustee's estate. Generally, a trustee takes an estate as large and extended as the necessities of the trust require, and

no more.

$2341. (2315.) Relief of sureties. Sureties on bonds of trustees may be relieved from liability by the Judge of the Superior Court, either at a regular term, or at chambers, upon the same terms and conditions as prescribed for the relief of sureties on the bonds of guardians by the Ordinary.

$2342. (2316.) Compensation. Trustees, for their service, shall be entitled to the same compensation as guardians for similar services.

Compensation:" 13 Ga., 165; 14 Ga., 416; 17 Ga., 223.

Trust in personalty may be created by parol: 2 Kelly, 297; 10 Ga., 535. Parol trust engrafted on deed-when: 5 Ga., 345; 13 Ga., 193. On bill of sale: 15 Ga.. 176. Parol trust in land: 6 Ga., 589. Parol evidence as to written trust, which is discretionary: 11 Ga., 195. Parol gift does not make donee trustee-when: 31 Ga., 317. Legal title in trustee-when: 3 Kelly, 5; 7 Ga.. 530; 20 Ga., 645; 30 Ga., 366; 42 Ga., 115. As trustees"-descriptio_personae-when: 3 Kelly, 383; 6 Ga., 530. Trustee for payment of debts: 6 Ga., 404; 24 Ga., 590. Trover by trustee: 6 Ga., 530; by cestui que trusts: 23 Ga., 469. Trust irrevokable-when: 10 Ga., 534. Remainder of personalty in trust: 1b. Deed to receiver from trustee: 11 Ga., 594. Husband as agent of wife's trust estate: 9 Ga., 223; as trustee of wife: 12 Ga., 195; 16 Ga., 103; 27 Ga., 309; 30 Ga. 446; 31 Ga., 728; 32 Ga., 696; 33 Ga., 520 Clark vs. Way & Taylor, March term, 1864; 34 Ga., 298; 35 Ga., 184. Renewal of suit by successive. trustees: 13 Ga., 55. Liability of father to support bastard sustains trust: 15 Ga., 175. Trustee cannot dismiss bill without consent of beneficiary: 18 Ga., 374. What trust administrator cannot enforce: 24 Ga., 506. Foreclosure of mortgage by trustee: 20 Ga., 72. Liability of co-trustees: 24 Ga., 670; 32 Ga., 31. Rights of guardian as against trustee: 20 Ga., 783: 26 Ga., 148; 32 Ga., 264; of executor: 32 Ga., 696. Proof of trust by circumstantial evidence: 26 Ga., 625. Death of beneficiary-effect of: 27 Ga., 576; of trustee: 40 Ga., 219; 42 Ga., 95. Trustees own property subject to trust debts-when: 27 Ga., 589. Trusteeship ends when: 29 Ga., 674. Trustees of Georgia Military Academy: 31 Ga., 273; of Summerville Academy: 35 Ga., 47. Where a trust terminates before final judgment: 31 Ga., 668. Trustees of a public charity: 32 Ga., 640. Legatee holds as trusteewhen: 29 Ga., 553. Executor holds as trustee for heirs-when: 12 Ga., 155; 25 Ga., 549; 27 Ga., 75; 29 Ga., 553; 33 Ga.. 520. Counsel fees-when allowed trustee: 29 Ga., 82; 32 Ga., 31. Trustees appointed for a family of minors entitled to homestead: 40 Ga.. 455. When one conveyance to trustee directs him to make a similar one to a third person: 29 Ga., 651. Where husband as trustee of wife becomes indebted to her by virtue of a marriage settlement duly recorded: Clark vs. Way & Taylor, March term. 1864. Trustee after acceptance of trust cannot set up title adverse to trust: 45 Ga., 110. Good faith" in trustee defined: Westbrook vs. Davis, January term, 1873. See, also, Brown ns. Tucker: Ib.

$2343. Conveyance to churches, etc., confirmed. [All deeds of conveyance heretofore made, and which may hereafter be made to any person

Of trustees-their appointment, powers, etc.

or persons, for any lots of land within this State, to any church or religious society, or to trustees for the use of such church or religious society, for the purpose of erecting churches or meeting-houses, are, and shall be deemed and taken to be good and valid, and available in law for the intents, uses and purposes contained in said deeds of conveyance; and all lots of land so conveyed shall be fully and absolutely vested in such (a) Act of 1805, church or religious society, or in their respective trustees, for the uses and purposes in said deed expressed; to be holden to them, or their trustees, for their use by succession, according to the mode of church government, or rules of discipline exercised by such churches or religious societies respectively.] (a.)

C. p. 899.

$2344. Trustees, to whom subject. [All trustees to whom conveyances are or shall be made, for the purposes expressed in the preceding section, shall be subject to the authority of the church or religious society for (b) Act of 1805, which they hold the same in trust, and may be expelled from said trust by such church or society, according to the form of government or rules of discipline by which they may be governed.] (b.)

C. p. 899.

$2345. Vacancies, how filled. [Every church or religious society shall be, and are hereby authorized and empowered to fill up all vacancies which may happen in the said trusts by death, removal, expulsion, or otherwise; and when any vacancy shall be filled up the same shall be certified under the hand or hands of the person or persons presiding in the said society, and according to the form of government or discipline practiced by said (e) Act of 1905, church or society, which certificate shall express the name of the person appointed to fill the vacancy, and the name of the person in whose place he shall be appointed; and the said certificate being received in the office of the clerk of the Superior Court of the county in which the land lies, the person so appointed to fill such vacancy shall be as fully vested with such trust as if a party to and named in the original deed.] (c.)

C. pp. 899,900.

'56, p. 272.

$2346. The three preceding sections construed. [The three preceding sections shall be so construed as to apply to all societies, whether social, charitable, secret, masonic, or by whatever name they may be called, and (d) Acts of 1855all criminal laws in force on the 5th of March, 1856, for the protection of religious societies, shall be so construed as to apply to all societies, by whatever name they may be called.] (d.)

'56, p. 272.

$2347. Societies incorporated. [Said societies, in their distinct and proper names, by their trustees or officers, shall be entitled and authorized to receive, by purchase, gift or bequest, all property, both personal and real, and they shall be capable in law of suing and being sued, pleading and being impleaded, contracting and being contracted with ; (e) Acts of 1855and they are hereby made bodies politic and corporate for the purposes named, when any of the said societies shall have entered their names as trustees or officers of any such societies, for the purposes herein specified, and they shall be capable in law of defending and being defended, and entitled to all the benefits of the three preceding sections before mentioned: Provided, That the said societies shall have recorded the name, style and objects of their association, as prescribed by laws in force on the said 5th of March, 1856.] (e.)

Article 1.-Grants generally.

22221.

TITLE VI.

OF TITLE AND THE MODE OF CONVEYANCE.

CHAPTER 1.-Of Grants.

CHAPTER 2.-Of Title by Will.

CHAPTER 3.-Of Title by Descent, Administration, etc.
CHAPTER 4.-Of Title by Judicial Sale.

CHAPTER 5.-Of Title by Contract.

CHAPTER 6.-Of Title by Escheat and Forfeiture.
CHAPTER 7.-Of Title by Prescription.

CHAPTER 8.-Of Conveyances.

$2348. (2317.) What is title. right to property is established. $2349. (2318.) And perfect title. One person may have the right of possession and another the right of property. In a union of the two consists a perfect title.

Title is the means whereby a person's

$2350. (2319.) Origin in grant. The title to all lands in this State originates in grants from the government; and, since its independence, from the State.

$2351. (2320.) Form of grants. The form of grants heretofore used in this State is hereby established, and a substantial compliance with the same shall be held sufficient.