1. It not appearing without dispute that the case is moot, the motion of the defendant to dismiss the writ of error on the ground that the case is moot is denied.
2. "Where the terms of a conveyance by deed to a trustee are large enough to embrace the fee in the premises described, and this fee is carved up into an estate for life in favor of one beneficiary and a remainder in behalf of other beneficiaries, who are uncertain and unascertained, the instrument should be construed as clothing the trustee with full title, and the title as to the remainder should be considered as abiding in him so long, at least, as the identical persons who are to take and enjoy it are not ascertainable. Up to that time, the trust is executory, and the remainder is an equitable, not a legal, estate." The deed to certain described realty, a copy of which was attached to and made a part of the petition as amended, which deed was executed and delivered by the owner of the property to the plaintiff, as trustee, "to have and to hold the same in trust nevertheless for the sole separate use and benefit of said first party [grantor] for and during her natural life, . . with remainder over, at the death of said first party, share and share alike, to her two sons [naming them], and their lineal descendants, or the survivors of them, as hereinafter set out, such descendants to take per stirpes," and "to hold same and manage said property and every part thereof, including the remainder interests," and providing that "at the death of the said first party all of said property shall be by said trustee, or his successors in office, still held for the purpose of distribution, and shall be conveyed by said trustees to said remaindermen free and relived of the trust," conveyed a valid title to the plaintiff in trust, not only for the beneficiary of the life use, but for the unascertained remaindermen, the remainder being an equitable and not a legal estate, and the trust being executory. The petition as amended set forth a cause of action for recovery of the value of the articles alleged to have been part of the realty and to have been removed without authority by *Page 462 the defendant, and the court erred in sustaining the defendant's general demurrer and in dismissing the plaintiff's action. DECIDED APRIL 22, 1943. REHEARING DENIED JUNE 8, 1943. STATEMENT OF FACTS BY SUTTON, J. J. Bennet Lewis, as trustee of Mrs. Janie Bennet Lewis and remaindermen mentioned in a deed of which a copy was attached to his petition as amended, brought suit against W. B. Fry, the petition as amended alleging as follows: The plaintiff is the duly-constituted trustee of Mrs. Janie Bennet Lewis and such remaindermen as are described in a copy of deed attached to the petition as exhibit "A" and made a part thereof. As such trustee the plaintiff is, and has been since October 27, 1939, in possession and control of certain property, more particularly the following described property: One brick store and lot facing south on Broad Street in the City of Camilla, formerly occupied by W. B. Fry Company, now occupied by Dixon Grocery Company, bounded as follows, to wit: on the north by an alley, on the east by a brick store formerly occupied by the Camilla Hardware Implement Company, now occupied by W. B. Fry Company, on the west by two-story brick building, same being the property now occupied as a bowling alley, on the south by Broad Street. At the time the plaintiff became trustee, as aforesaid, on October 27, 1939, the defendant was occupying the above-described property as a tenant therein, and occupying and using the property for the purpose of conducting therein a general hardware business. Before becoming trustee as aforesaid the plaintiff was in charge of and did look after the property then belonging to his mother, the said Mrs. Janie Bennet Lewis, and collected the rents due on the various properties, including the above-described store occupied by the defendant. The defendant agreed with the plaintiff that, in the event the owners would allow him to use the said building for a period of not less than two years, he would erect a storage room at the rear and adjoining the said brick building, to be erected on the property of the plaintiff, as aforesaid, at the rear of the said brick building, and further, that at the end of the two years the building would become the property of the said owners, or in the event the said tenant desired to move from the store before the expiration of the two-year period the said *Page 463 storage building would likewise become the building of the landlord. The defendant proposed to the plaintiff orally during January, 1939, at a time while he was occupying the said premises as a tenant, that he would build and erect the room at the rear, which has been heretofore more fully described, and said proposal was made to the plaintiff and accepted by him, and the defendant proceeded to build and erect the said store building as had been proposed by him as aforesaid. The defendant did, after making said agreement, occupy the aforesaid premises for a period of two years as tenant, and when he moved his business from the aforesaid location at the expiration of the two-year period, to wit, on December 31, 1941, he moved therefrom of his own accord, and was not asked to nor was he forced to move therefrom by the plaintiff.
Sometime in the last part of December, 1941, the defendant learned that the property then occupied by a hardware store by Camilla Hardware Implement Company would be vacated, and up until this time the defendant had not intimated or disclosed to the plaintiff that he was dissatisfied with the property that he was then occupying as a hardware store, and the plaintiff had no notice whatever of the intention of the defendant to remove his business from the property heretofore described to the property occupied by Camilla Hardware Implement Company, and the defendant did move without giving any notice whatever. It is true that after the defendant had vacated the property heretofore occupied by him he did pay one month's rent as a penalty for his failure to give notice of his intention to move. Months intervened when the property was vacated and held as a loss for said building in a manner as aforesaid. When the defendant moved into the said store building as a tenant there was located therein shelving, attached to the said building, the value of which at the end of the said tenancy the plaintiff alleges to be in the amount of $100. There were several counters, the total value at the end of said tenancy being alleged to be in the sum of $50. The aforesaid counters and shelving were attached to and were a part of the realty, notwithstanding which the defendant, without the permission of the plaintiff, did move from the said store building all of the said counters and shelving after he had given notice that he would vacate the said building and after the expiration of the said two years. The aforesaid storage room was constructed of galvanized metal attached *Page 464 to wood framing. The foundation of the storage room and/or building was constructed of brick, and holes were dug into the soil for the base of the said brick pillars. The building was so attached to the aforesaid brick building in such manner as to permit an easy entry into the said storage room from the two rear doors of the said brick building, and a passageway connected the two buildings. The building was attached to and became a part of the realty, and the realty is the property of the plaintiff, as trustee, as aforesaid. The storage room was not a trade fixture. After the defendant moved his business, as aforesaid, from the building heretofore described he, without the knowledge, consent, and approval of the plaintiff, did, personally or through agents and/or employees, remove the aforesaid storage room, the realty of the plaintiff, as aforesaid. The value of the storage room was $500 or other large sum, and the size of the said building removed by the defendant in the manner shown was approximately thirty feet by twenty feet. The plaintiff has been injured and damaged by the removal of the said storage room, shelving, etc., in the amounts above shown and in the manner shown. The prayer was for judgment in the sum of $500 for the removal of the said storage room, $100 for the removal of the aforesaid shelving, $50 for the removal of the aforesaid counters, and for process.
The copy of the alleged trust deed attached to the petition reads as follows: "This indenture, made this 27th day of October, 1939, between Mrs. Janie Bennett Lewis of Mitchell County, Georgia, hereinafter called the first party, and J. Bennett Lewis, of Mitchell County, Georgia, as trustee, hereinafter called the second party, Witnesseth: That the said party of the first part for and in consideration of the sum of ten dollars and other valuable considerations moving hereto does hereby bargain, sell, grant, and convey unto said second party as trustee, and his successors and assigns, the following described properties, to wit [all property conveyed described but herewith omitted except for the property in question which is herewith described as follows]: Also one brick storehouse and lot facing south on Broad Street in the City of Camilla, now occupied by W. B. Fry Company bounded as follows, to wit: on north by alley, east by brick store occupied by Camilla Hardware Implement Company (property of Mrs. D. V. Thompson); west by two-story brick building of the J. C. Turner *Page 465 estate, south by Broad Street. [Note: The conveyance conveys all the property of the grantor and is specifically described, and same appears of record in the clerk's office, Mitchell superior court.]
"Together with all and every other right, title, property, and interest, whether real, personal, or mixed, which said first party has, or has a right to dispose of, whether particularly described above or not, it being the intention of this conveyance that said first party shall hereby grant to said second party, as trustee, any and all property of every nature, both real and personal, now owned by said first party, or which said first party has a right to dispose of. To have and to hold the same in trust nevertheless for the sole separate use and benefit of said first party for and during her natural life, with the right and duty of encroaching upon the corpus of said property at any time when the same may be necessary or proper for the comfortable care, maintenance, and support of said first party, as hereinafter set out, with remainder over, at the death of said first party, share and share alike, to her two sons, Charles Little Lewis and Bennet Lewis, and their lineal descendants, or the survivors of them, as hereinafter set out, such descendants to take per stirpes.
"Said trustees, and his successors in office, are to hold same and manage said property and every part thereof, including the remainder interests, and with full power to sell, exchange, mortgage or convey by security deed, the whole or any portion of the property above described or any and all reinvestments made from the proceeds thereof, the conveyance to include both the life estate and also all remainder interests, so that the grantee shall have full fee-simple title, all to be done either publicly or privately, and without any order of any court or tribunal, as said trustees and his successors in office may think best, one of the purposes of this conveyance being to relieve the said first party of any and all responsibility and anxiety or trouble concerning the management of said property in any way; and said trustee and his successors in office shall, from the income of said property, pay promptly all taxes and repairs and costs of insuring or improving the same, and keep and preserve the same carefully, and said second party and his successors in office shall, during the lifetime of said first party, pay over to her or her proper representative, a sufficient amount out of the *Page 466 income from said property to meet all of her expenses and to provide for her an ample and comfortable support and maintenance, including medical attention, drugs, and any necessary hospitalization, and in case it should be necessary or proper, on account of large medical or hospital bills, or any change of condition, to advance to said first party or her representative during her lifetime any additional sums, in addition to said net income, in order that she may be maintained and cared for in the best manner possible, the said trustee and his successors in office shall have the right and duty also to encroach upon the corpus of said estate in order to secure such sums as may be thus rendered necessary and proper to be paid over for the support and maintenance of said first party.
"If during the lifetime of said first party the net income from said property should exceed all requirements of said first party for her proper comfort, maintenance, and support and care, then said second party (trustee herein) and his successors in office are authorized and directed also to pay from said net income a reasonable amount, not to exceed $15 per month, to each of said sons, while they continue in life, or to their lineal descendants of either who may be dead during the life of said first party, such descendants taking per stirpes and not per capita. At the death of the said first party all of said property shall be by said trustee, or his successors in office, still held for the purpose of distribution, and shall be conveyed by said trustee to said remaindermen free and relieved of the trust."
After the original petition had been amended the defendant renewed general and special demurrers which had been filed, and also demurred on the ground that "plaintiff shows no title or right of recovery of damages to any of the property referred to in said petition." The court ruled on said demurrers in writing as follows "The original petition of the plaintiff having been amended after demurrers both general and special were filed thereto, and after amendments to the petition the defendant's demurrers were renewed and said case came on to be heard on whether or not the demurrers to the petition as amended should be sustained, and after argument and due consideration it is considered, ordered, and adjudged that the demurrers of the defendant to the petition of the plaintiff be and the same are hereby sustained and said petition is hereby dismissed." *Page 467
The case was by bill of exceptions taken by the plaintiff to the Supreme Court, error being assigned on the "action of the court in sustaining the general demurrer and in dismissing the petition." The plaintiff specified in the bill of exceptions, as material to a clear understanding of the errors complained of, the petition and amendments of the plaintiff, "the general demurrers filed by the defendant, together with the renewal thereof after the amendments," and the "order and judgment of the court in sustaining the general demurrer and in dismissing the petition."
In the Supreme Court the defendant filed a motion to dismiss on the ground that it was without jurisdiction, in that the question of the plaintiff's title was only incidentally involved in the suit. The court so ruled in transferring the case to this court instead of dismissing it. See Lewis v. Fry, 194 Ga. 842 (. . S.E.2d,. .). In the motion filed in the Supreme Court it was also contended by the defendant that the questions at issue had become moot for reasons stated, but the Supreme Court made no ruling thereon. 1. A motion was made by the defendant to dismiss the writ of error on the ground that the case has become moot for stated reasons, but the response to the motion raises issues of fact as to the contention of the defendant. It thus not appearing without dispute that the case is moot, the writ of error will not be dismissed. Tuells v. Torras, 113 Ga. 691 (39 S.E. 455);Wilson v. Eatonton, 180 Ga. 598, 602 (180 S.E. 227);Jones v. Johnson, 185 Ga. 323, 324 (1) (194 S.E. 902).
2. It is contended in the brief of counsel for the plaintiff that only the general demurrers were passed on by the trial court, but the defendant contends that the special demurrers were also sustained. The bill of exceptions assigns error only on "the action of the court in sustaining the general demurrer and in dismissing the petition" and specifies, as material to a clear understanding of the errors complained of, the petition and amendments of the plaintiff, "the general demurrers filed by the defendant, together with the renewal thereof after the amendments," and the "order and judgment of the court in sustaining the general demurrer and in dismissing the petition." The order entered by the court in ruling on the demurrers is set out in the foregoing statement of facts, *Page 468 and from it we can not say as a matter of law that it shows that, as contended by the defendant, the special demurrers were ruled on along with the general grounds of demurrer. While the special demurrers were not specified to be sent up, the clerk of the trial court has included copies of them in the record transmitted to this court, and from an inspection of some of them it must be said that it could not reasonably be concluded, in view of the amendments made to the petition after the special demurrers were filed, that the trial judge really intended by his order to rule that such grounds of special demurrer were meritorious even after the petition had been amended. For instance, the original petition alleged that the plaintiff was the duly-constituted trustee of Mrs. Janie Bennet Lewis, and as such was in possession and control of certain described realty. The defendant demurred specially on the grounds, among others, that it was not stated when or in what manner or by what authority the plaintiff was constituted the trustee of Mrs. Lewis, and that the petition did not show that the plaintiff had any lawful right or authority to file the petition, and that the plaintiff relied on an express trust agreement upon which to base his suit and no copy of such trust conveyance was attached to or made a part of the petition. Thereafter the plaintiff amended the petition to read that he was the duly-constituted trustee of Mrs. Janie Bennet Lewis and such remaindermen as are described in a copy of deed attached to the petition as exhibit "A" and which copy of deed was in fact attached, and that as such trustee he had been in possession and control of the described realty since October 27, 1939. Other illustrations might be made as indicating that the court did not pass on the special demurrers of the defendant, but dismissed the action only on the supposed merit of the grounds of general demurrer that no cause of action was set out in the petition as amended and that the plaintiff shows no title or right of recovery of damages to any of the property referred to in said petition. Accordingly, the case will be treated as involving only the question whether or not the court erred in sustaining the general demurrer and in dismissing the plaintiff's action.
Does the petition as amended show that the plaintiff was entitled to maintain the action? The answer depends upon a determination of whether or not the trust deed relied upon conveyed title to the plaintiff in trust for the grantor and in trust for others *Page 469 after her death. Does the petition as amended show that the things alleged to have been removed by the defendant were parts of the realty to which the plaintiff claimed to hold title in trust, or is it shown that they were trade fixtures which the defendant had a right to remove before the expiration of his tenancy? "A person can not by deed create out of his own property, upon his own behalf, a trust estate. A deed executed for such a purpose is void, and passes no interest, legal or equitable, to the trustees named. In such a case the whole title remains in the grantor, and the property so sought to be conveyed is subject to the payment of his debts." Sargent v. Burdett,96 Ga. 111 (22 S.E. 667). See City of Rome v. Shropshire,112 Ga. 93 (37 S.E. 168), in which it was ruled: "A conveyance in trust for a woman, married or single, of full age and sound mind, with no remainder to protect, and nothing prescribed for the trustee to do, operates to pass the legal title immediately into the beneficiary, the conveyance being made since the passage of the act of 1866 which secures to women all their property as separate estate. The trust is executed." In the Sargent case, supra, it was said in the opinion: "Our Code provides for the creation of trusts only in favor of certain specified classes of persons, viz.: minors, persons non compos mentis, and such persons who, on account of mental weakness, intemperate habits, wasteful and profligate habits, are unfit to be put in the management and right of property. Since the passage of the woman's enabling act of 1866, though prior thereto it could be done, a trust can not now be created in favor of a woman because of her sex alone, because, whether she be feme sole or feme covert, she is capable to take in law the absolute fee, free from the debts and control of her husband; and therefore inasmuch as a trust attempted to be created in favor of a woman, married or single, stands executed eo instanti with its creation, it is incapable of being created. Upon this reasoning it has been held in Gray v. Obear, 54 Ga. 231, that a trust estate can not be created in property in this State for the sole benefit of a full grown man who is sui juris, and be conveyed to a trustee for the purpose of protecting it against his creditors, or for the purpose of depriving him of the free use and enjoyment of such property as the owner thereof. This general statement is of course with the qualification, that if there be limitations overand restrictions in favor of other persons for *Page 470 whose use a trust is capable of being created, the trust estatewould be upheld. [Italics ours.] By section 2314 of the Code [1933, § 108-112], in case of an executed trust for the benefit of a person capable of taking and managing property in his own right, the legal title is merged immediately into the equitable interest, and the perfect title vests in the beneficiary, according to the terms and limitations of the trust. The words, `capable of taking and managing property,' relate to the mental and not to the physical capacity; for whatever may be the physical condition of a cestui que trust, if he labor under no mental infirmity which prevents the management and control of his estate, a trust in favor of such a person is, nevertheless, executed."
The Code, § 108-111, declares: "Trusts are either executed or executory. In the former, everything has been done by the trustee required to secure the property or to render certain the interest of the beneficiaries, and all that remains for him to do is to preserve the property and execute the beneficial purposes. In executory trusts, something remains to be done by the trustee, either to secure the property, to ascertain the objects of the trust, or to distribute according to a specified mode, or some other act, the doing of which requires him to retain the legal estate." It may be necessary for the trustee to determine what person, once uncertain, is entitled to take the remainder interest after the death of the beneficiary of the life use. InWoodbery v. Atlas Realty Co., 148 Ga. 712 (98 S.E. 472), it was held: "Where the terms of a conveyance by deed to a trustee are large enough to embrace the fee in the premises described, and this fee is carved up into an estate for life in favor of one beneficiary and a remainder in behalf of other beneficiaries, who are uncertain and unascertained, the instrument should be construed as clothing the trustee with full title, and the title as to the remainder should be considered as abiding in him so long, at least, as the identical persons who are to take and enjoy it are not ascertainable. Up to that time, the trust is executory, and the remainder is an equitable, not a legal, estate." To the same effect see Burton v. Patton,162 Ga. 610 (2) (134 S.E. 603), where, as stated in the headnote, "a testator devises certain described realty to a named person as trustee for A `during her natural life, and after her death to her children then in life, and representatives of any children who may have died leaving children, the children *Page 471 of deceased child or children taking their father's or mother's share.'"
Under the above authorities and the deed here involved, we think that the plaintiff was clothed with full title, not only during the lifetime of the grantor, but with title also in trust for the remaindermen who could not be ascertained, as entitled to take and enjoy the property, until after the death of the beneficiary of the life estate. The remainder over which was created by the deed, "share and share alike to her two sons [naming them] and their lineal descendants, or the survivors of them," was not limited to a certain person or persons in esse at the time of the death of the grantor, for whom a life estate was carved out of the property by her deed. As was said inSinger v. First Nat. Bank Trust Co., 195 Ga. 269 (24 S.E.2d 47) : "It has often been held that a grant or devise to A and the heirs of her body, or words of similar import, operates to vest the fee-simple title in A. . . This rule would not apply, however, where a less estate has been carved out, and the term `heirs of her body,' or words of similar import, are used in connection with a limitation over in remainder." See alsoMcArthur v. Bone, 183 Ga. 796, 799 (189 S.E. 831).
Hence, at the death of the holder of the life estate in the present case, if one of her two sons was in life and there was also in life a child or children of the other son, who had died, such child or children coming within the description of "their lineal descendants, or the survivors of them," the son would not alone take the property in fee simple, but such child or children would share with him as tenants in common, but taking per stirpes as provided in the instrument. It is clear, therefore, that until the death of the holder of the life estate it could not be ascertained who would take the property as remaindermen. The trust created was executory, and title abided in the trustee for the purposes expressed in the deed. Until the death of the grantor the identity of the remaindermen, entitled to take and enjoy the property, and designated in the deed as her two sons "and their lineal descendants, or the survivors of them," could not be ascertained. The plaintiff was empowered to hold the property in trust, not only for the grantor in her lifetime, but for unascertained remaindermen, and at the death of the grantor to still hold it a sufficient length of time to enable the trustee to ascertain the person or persons entitled to the remainder *Page 472 over and then to distribute and convey the title accordingly. The trust engrafted upon the life interest was clearly executory and equitable, and not legal, in its nature, and the title being in the plaintiff as trustee he had the right to institute and maintain the present suit in that capacity. If, therefore, the petition as amended alleged that parts of the realty, title to which was in the plaintiff, were unlawfully removed by the defendant, a cause of action was set forth, and the court erred in sustaining the grounds of general demurrer. If the things removed were, under the allegations of the petition as amended, merely trade fixtures which were installed and owned by the defendant, no right to recovery of damages is shown.
The petition does not intimate that the shelving and counters taken from the store building were placed therein by the defendant but, properly construed, alleges that they were attached to and a part of the store building before it was rented to the defendant. Under the trust deed, therefore, the title thereto was in the plaintiff at the time of the removal from the building. As respects these articles the petition as amended clearly showed a right in the plaintiff to recover the value thereof. The petition alleges, with respect to the storage room, that it was erected on the property at the rear of the store building with the agreement with the plaintiff, as agent of Mrs. Lewis, before he became trustee under the deed, that if the defendant were allowed to occupy the store building for two years as a tenant the storage room would be considered as part of the realty and the property of Mrs. Lewis, the plaintiff's predecessor in title. It was alleged that the defendant did occupy the store buildings as a tenant for two years, and vacated the premises of his own volition, without any compulsion whatever of the owner, taking with him without authority the described storage room. Thus a tort action in trespass for the value of the storage room was brought by the plaintiff. The damages were not, as argued by the defendant's counsel, such as arose ex contractu. The references to the agreement that the storage room upon being erected by the defendant would, after a tenancy of two years, become a part of the realty and be the property of the owner of the store building, and not be considered as a trade fixture and removable by the tenant, do not characterize the action as one ex contractu, but merely explain in what manner the storage room became a part of the realty, *Page 473 all of which title was in the plaintiff as trustee at the time of the unauthorized removal of the storage room.
The petition as amended set forth a cause of action in favor of the plaintiff as trustee, and the trial court erred in sustaining the grounds of general demurrer and in dismissing the action.
Judgment reversed. Stephens, P. J., and Felton, J., concur.