FORT, Executrix, et al. v. FORT, Executrix, et al., 223 Ga. 400, 156 S.E.2.d 23
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Jesse G. Bowles, for appellees.Davis & Friedin, Roy B. Friedin, for appellants.
1. It was not error to refuse to give appellant's requested charges relating to the duty of care a trustee in possession of trust property is required to exercise and defining this duty of care in that the single issue submitted to the jury, by consent of the parties, was whether the appellee had committed waste.
3. The court properly overruled appellant's objection to the appellee's testimony as to payment of taxes and valuation of timber at the time of testator's death.
4. The court properly construed the will determining the testator's intent to leave the appellee all the rights, benefits and privileges of a life estate.
5. The evidence fully supports the verdict of the jury.
Miss Amelia Fort, the appellant and sister of Arthur Fort, in her capacity as executrix and trustee under the will of Arthur Fort filed her complaint against Mrs. Martha Fort, the appellee and widow of Arthur Fort, individually and in her capacity as co-executrix and co-trustee under the will of Arthur Fort. The primary purpose of the action was to leave the court declare the rights and duties of the appellee, Mrs. Martha Fort, relating to the cutting and removing of timber from certain real estate in which she held a life estate and in which the appellant, Miss Amelia Fort, had a remainder interest under the will of Arthur Fort.
Appellant alleged in her petition that: "The defendant, Mrs. Martha Fort, is not a life tenant with respect to the real estate mentioned in article numbered eighteen of the will and that she, the said defendant, is a life income beneficiary and that she, the said defendant, is adequately supported without any necessity to resort to the corpus of the property left to the exempt in trust, and that neither the co-executors nor trustees nor the individual defendant had the right to consent to, or to commit, an act tending to the permanent injury of the remaindermen, and the defendant, Mrs. Martha Fort, contends that she is a tenant for life and is entitled to the full use and enjoyment of the timbered real estate, included in the residuum and that she can cut any timber and retain the proceeds, and in this connection the plaintiff shows that in an account for income tax purposes in connection with the estate of the decedent, Arthur T. Fort, for the year ending 30 June 1966, to which return the plaintiff does not assent, there appears as proceeds from disposition of timber $28,413.87 as 'distributed income to beneficiary,' meaning by the term 'beneficiary' the individual defendant.
"The removal of the timber of which mention is made in the next preceding paragraph was over the protest of the plaintiff and not in the exercise of good husbandry and was not an act which could be done by the defendant as an individual nor by the defendant as an executor or trustee without the conjoint act and concurrence of the plaintiff executor and trustee.
"Some timber remains which the individual defendant intends to cause to be cut, felled and removed, and thus a justiciable controversy arises, and in order to avoid the risk of taking any future undirected action and in order to settle and afford relief from uncertainty of the rights of the parties the plaintiff is entitled to ask for, and does ask for, a declaratory judgment determining issues of fact and of law and to the grant of a temporary restraining order to maintain the status quo pending a declaratory adjudication of the rights, status and other legal relations."
In her answer the appellee alleged: That a vast majority of the lands in which she was devised a life estate are timber lands seeded in pine and hardwood trees. That a part of the hardwood timber was fully mature, and in the practice of good forestry and husbandry to improve the stands of timber and to protect the value of the freehold and remainder interest, said hardwood timber needed to be cut. "That in order to improve said lands, and the stand of trees thereon; to protect and preserve the value of said lands; and in order to preserve and protect the remainder interest in said lands; and in the practice of good forestry and husbandry, defendant had a professional forester to determine, mark and designate which of said undesirable trees should be cut and after so determining, had said trees removed from the land." That "[t]he principal value of the lands is the trees and timber thereon. Said lands yield little or no income, except from their tree and timber growth. That the taxes on said lands are extremely high and this defendant is charged with the responsibility of paying the same. That without the proceeds yielded from exercising good, sound forestry practices on said lands, this defendant would have little or no income therefrom and would be solely charged with the taxes and other expenses attendant upon maintaining and preserving the same. That all of the acts of defendant exercised on said lands were with ordinary care of a prudent man with no acts tending to the permanent injury of those persons entitled in remainder. That it was and is the custom of this section of the country for prudent and judicious owners of lands to exercise and perform all the acts performed on said lands by this defendant. That said acts of defendant do not amount to waste, do not injure the realty, but in truth and fact improve the same." That "[d]efendant show there are many other acres on said estate land that need the same or similar attention and management as those acres recently improved by defendant. That plaintiff contends the defendant is entitled to none of the proceeds produced from sales of trees removed from said lands in carrying out good husbandry and forestry practices. The parties cannot agree on any method of marking trees, cutting the same, and improving said lands. That a genuine stalemate or impasse has been reached and the exercise of their powers in this respect is now impossible."
The case came on for a trial before the court and a jury. By consent and agreement of the parties the only question submitted to the jury was: "Did the defendant (appellee) commit waste on said real property?" The jury found in favor of the appellee; and the court entered a final decree construing the will of Arthur Fort, with respect to the properties devised under Item 18 and in light of other provisions of the will, as leaving his widow, the appellee, all the rights, benefits and privileges of a life estate in said properties. The court further ordered that the conduct of the life tenant in cutting and removing timber did not amount to waste.
The appellant has filed her appeal from the verdict and decree assigning error on eleven grounds.
1. Enumerations of error 1, 2 and 3 assert that the court erred in refusing to give three of appellant's requested charges to the jury. In substance these requested charges were that trustees having possession of the trust property are bound to use ordinary diligence in the preservation and protection of the same, and ordinary diligence means that care which every prudent man takes of his own property.
It was not error to refuse to give these requested charges to the jury. The court in construing the testator's will held that his wife, Mrs. Martha Fort, received a life estate in the timberlands involved, and as a life tenant she was entitled to all the rights, benefits and privileges of a life estate. By consent of the parties the only issue submitted to the jury was whether the life tenant had committed waste. This issue did not involve any question as to the duty one trustee owed a co-trustee. Mrs. Martha Fort's possession of the property was as a life tenant and not as a trustee for the remainderman. Lazenby v. Ware, 215 Ga. 379 (110 SE2d 650), the controlling question was whether or not the life tenant was authorized to cut and sell from the timberland trees that were removed from the property in the process of making an improvement by cutting in accordance with approved forestry practices. In that case the income of the life tenant was derived from turpentining the pines and properly thinning the pine timber and selling it for pulpwood. It was there said that "the jury was authorized to find that the cutting for thinning purposes was not harmful to the land in any way, but, on the contrary, was calculated to and did make the property more valuable."
The evidence in the instant case fully supports the verdict of the jury that good husbandry required the cutting and removing of the trees, and the cutting and removing were such acts as would have been exercised by a judicious and prudent owner of the remainder.
Judgment affirmed. All the Justices concur.
1967
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