By the Court.
Benning J.delivering the opinion.
Was the Court below right in sustaining the motion to dismiss the action ?
The ground on which the motion was put and decided, was, “ that the trust had ceased and determined, according to the provisions of” “ the deed of trust.”
Was this ground true ?
The first argument employed to show it true, was, that the trust expired at the death of Warner Washington, which . happened before the commencement of the suit. But the first use in the deed is to Warner, and his wife Ariana, “for their joint lives and the second, is to “ the longest liver for his or her life;” and she was the longest liver. Consequently, the use or trust, must, by the terms of the deed, have continued beyond his life. The first argument, therefore, is not sufficient.
The second argument was, that “if the trust did not terminate at the death of Warner Washington, it expired at the death of Mrs. Washington, all the children being” then “ of age,” “ the property absolutely vested in them, and they have the right to sue for the same.”
But Mrs. Washington did not die until 1857, and the suit was commenced in 1849, Consequently, granting this argu*582meat to be good, it does not prove that the action was not well commenced, and well prosecuted for eight years. Indeed, it admits the contrary. If then, that be so, did the action abate by her death ? Yes, says this argument; it says that the property, at her death, vested absolutely in the children. What property ? The whole property, including what had been her interest in it, before her death. Is it true, that by her death, both the equitable title to ¿his interest— a title that was in her — and the legal title to it — a title that was in the trustee, passed into the children ? To justify us in saying, that even the equitable title to that interest, passed into the children, we should have to assume some things which, the evidence does not authorize us to assume. We should have to assume that she died out of debt, and without a will; for, if she died in debt, her creditors would have the first claim upon her estate; and if she had a will, her legatees would take what the creditors left.
We are not authorized then, we think, to say that even the equitable title to her interest in the property, vested at her death, in the children.
Did not that title vest in her legal representative. It is sufficient to say, that, for aught that appears, she had no legal representative. It does not appear, that she had a legal representative.
And even if it were, that she had a legal representative, and consequently that the equitable title to this interest, was in him, we should nevertheless be inclined to think, that the ■ legal title to it, would still remain in the trustee — that, in other words, the trust would not be executed in such legal representative — but that a conveyance or transfer of that title, by the trustee to him, would still be necessary, in order to clothe him with the entire title. The reasons for this inclination will be indicated in the close of this opinion.
This argument then, is we think, insufficient.
The third argument was this; “ When the youngest child arrived at full age, Warner Washington being dead, the chil*583-dren were to divide the property between themselves, and the power and duties of the trustee ceased at the death of Washington, he having nothing further to do.”
But it turned out, that Warner Washington was not dead, when the youngest child arrived at full age. The part of the deed relating to that division, therefore, failed. The division was to take place, at that time; “provided he, the said Warner Washington” should “ die before that time.” He died after that time.
The fourth argument was in these word:
“ The property being in the children, Garrett cannot recover it for he is no longer their trustee. Mrs. Washington being dead, he is no longer her trustee, and if there is any thing due her individually — damages for hire — it goes to-her representative, and the trustee cannot demand it, for if he recovers any thing, it can only be as trustee, for a dead person.”
A part at least of the property, is, as we have seen, not in the children — the part that Mrs. Washington was entitled to.
We are not prepared to admit, that the mere death of the cestui que trust, destroys the trust, and divests the trustee of the legal title. We think, that, whether such death destroys the trust or not, must depend entirely upon the terms and conditions of the trust.' And among the terms and conditions of this trust, there is none that says the trust is to expire, at her death. And if there were, that could not have the effect, to divest the trustee of the legal title to the interest in the property which belonged to her, but he would still hold the legal title to that interest, in trust for whoever might become her administrator or executor. So that, even if we concede, that the trust expired with her, it will still be true, that the trustee will have the right to sue for the interest which she had in the property, there being as yet, no legal representative of her.
The conclusion, then, to which we come, is that none of the arguments are sufficient to establish the position, that the *584trust had “ ceased and determined,” in every part of the trust property. R o other argument occurs to us, which would, in our opinion, be sufficient to'establish that position.
The result therefore, is that we think, that the trustee was entitled to sue for and recover, at least, the interest, of Mrs. Washington, in the property. Hence, we think, that the Court erred in dismissing the action.
Was he not entitled to recover the entire interest, — all of the negroes, and all of their hire ? I resume this question, to indicate as I promised to do, the mere inclinati n of our opinion on it.
Was not the trust, on the death of Mrs. Washington, executed in the children, so far as their interest in the property .was concerned ? Or was it still a subsisting trust, and the case one in which, it was necessary, that there should be a transfer of the legal title by the trustee, to them, in order to put that title in them ?
It must be remembered, that the terms of the conveyance to the trustee, are sufficient to carry into him, the whole legal interest. They are, to him,“ his heirs, executors, and administrators, forever.” It must be remembered, too, that the conveyance is by deed, and not by will. And lastly, it must be remembered, that by the terms of the conveyance, the trust was to subsist, in certain events, (which I may say have happened,) for the children, after the death of both parents. Under these circumstances, did the trust terminate at the death of Mrs. Washington, and the legal title, by mere operation of law, pass from the trustee to the children, rendering it unnecessary, that there should be a conveyance of that title, made to them by him l
The question is not without difficulty; but we are inclined to think, that the authorities are in the negative. See Hill on trustees, and the cases cited by him, beginning at 248, Marg. 1; Also, Id. 255, 324, 335; 2 Coke Litt., But. note 15.
*585In Jordan vs. Thornton, 7 Ga. 520, this Court seems to recognize the necessity of some transfer, by the trustee, though they held, that a bare delivery of the property, was sufficient. The property was personalty — negroes. The language of the Court was, “No conveyance of the legal estate by the trustee, was required by the will; it passed by operation of law upon delivery.”
We must, with our views, reverse the judgment and reinstate the case.
Judgment reversed.