The morning news. [volume] (Savannah, Ga.) 1887-1900, 1894-06-19
MILLEN'S HEIRS BEATEN.
The Supreme Court SuStainS Judge
FaIli6ant'S Decision.

The Change in the Trustee Not Made
in Such a Manner as to Be Abso-
lutely void-The Power of Sale Ex-
ecuted to the Former Trustee Avail
able for the Use of the New One-No
Extinction of the Power of Sale.
Atlanta. Ga, June 1s.-The supreme
court to-day rendered a verdict in the
sMillen" case, upholding Judge talligant
in declaring the titles to the property in
volved to be valid. Following is the text
of the decision, the case appearing under
the title of Freeman ct al. VS.. Prender-
CAST:
l. Where in the year 1S47, before the
adoption of the code, the superior court
of the appropriate county entertained the
petition of trustees praying that they be
discharged from their trusteeship, and
that another be substituted in their
place, and when the court
undertook in acting in the
the interest of the remaindermen, all of
whom were minors at the time, and for
that purpose exacted bond and security
of the newly appointed trustees; and
when the creator of that trust, who was
the father of the remaindermen, eX-
pressly assented in writing to the dis
charge and to the appointment of the par
ticular person who was selected to fill the
vacancy, the infant remaindermen were
not indispensable parties to the proceed
ing, but it was discretionary with the
court to require them to be made parties
or not, and to proceed with or
without having them notified, and
with or without an express order appoint
ing a guardian ad litem to represent
And 4fn amt int he lNra ole q of
its discretion having granted the prayer
of the petition and appointed a new
trustee, and he having given the bond
and surety required, the Judgment or de-
cree, even if irregular, was not void, and
when attacked collaterally more than
forty years afterward will not be regarded
or treated as a nullity, but will be upheld
as good and valid so far as necessary to
protect the persons and rights of
property fairly acquired under it, or in
consequence of authority which it was in
tended to confer upon the courts APP
pointees.
Under all the circumstances the father
of the minors should be treated as their
guardian ad item, recognized by the
court though not formally appointed as
such. AS TO the substance of the matter
he was their guardian ad Item.
2. The power of sale conferred by the
trust deed upon the original trustees
passed to- and could be legally exercised
by the new trustee appointed by the
court, the order of the court
expressly providing that he was to
be clothed with all the powers
which they possessed. The power of
sale being not mere unilateral, but mat
ter of express covenant in the deed be-
tween the parties thereto, was not one in
volVing personal trust or confidence, but
was power pertaining to the trustee
ship or the Office and character of the
trustee, and was, moreover, a power
coupled with an interest, the trustees, as
such, being clothed with legal title and
estate in the trust property, which estate
was the entire fee, inasmuch as the bene-
ficiaries consisted of a married woman
as tenant for life of minor children
in remaindermen, and the holding in trust
being expressly declared by the deed to
be for the remaindermen as well as for
the life tenant, and some of the objects of
the trust clearly indicating that they
were to be executed irrespective of
whether she were alive or dead
g. No extinction of the power of
sale resulted from the payment, prior to
the exercise of the power, OF all the debts
of the creator of the trust, the power
being broad enough to comprehend all
the trust property and to embrace a sale
for reinvestment as well as sale to pay
debts.
The announcement of the decision was
received yesterday in a telegram TO
Denmark & Adams. The case was tried
in the superior court here in August,
1892. The trial occupied eleven days and
resulted in the judge instructing verdict
for the defendant. There were thirty
six cases Ringing on the Prendergast case
making about half million dollars in
which O 1aYcra mn Ia,. Of
homes had been built. The case is we'll
known and involves the title to the land
known as the Prendergast tract in the
southeastern section of the city. The
final settlement of the case is a relief to
those who had titles to portions of the
property.
1n --z-A-@ v--wr-