
    MOORE et al. v SINNOTT et al., executors, etc., et al.
    
    
      1. The beneficiary of a valid and subsisting spendthrift trust can not alienate the trust property so as to affect the rights of the trustee to the possession thereof and defeat the objects of the trust.
    2. Where property is devised to a trustee in trust for the benefit of A for life, and, after the death of A, then for the benefit of B for life, the trust is executory during the life of B, although A is not the subject of a trust under the .Civil Code,.§ 3149.
    Argued February 24,
    Decided June 3, 1903.
    Equitable petition. Before Judge Brinson. Richmond superior court. June 13, 1902.
    
      
      Frank H. Miller, J. O. C. Black, and M. P. Gdrroll, for plaintiffs in error. W. K. Miller, D. G. Fogarty, F. PC. Callaway, and G. Henry Cohen, contra.
   Fish, J.

By the will of Andrew M. Moore certain property, including that now in dispute, was left to Sinnott and others as his executors and trustees, in trust for his three sons, Albert H., George M., and Henry G. Each son was to receive the income from one third of this property, not subject to his debts or to be disposed of by him. Upon the death of any one of the sons, his share was to go to the other two, and, upon the death of one of the latter, the entire income was to go to the survivor. Upon the death of all of the sons, the will made provision that the executors and trustees should’hold it for certain charitable uses. This ultimate remainder, for reasons stated in Sinnott v. Moore, 113 Ga. 908, was invalid, and there was an intestacy as to this, and a resulting trust in favor of the heirs of the testator. Under a bill for direction, filed by the Georgia administrator of the estate, and various answers thereto, it was claimed that the trusts were invalid, and that the sons were entitled to the property in their own right. The case was brought to this court, where it was held, that, so far as appeared from anything in the record, the trusts for the sons for life and the cross-remainders were valid and the trustees were entitled to the possession and control of the property. After the decision of this court, certain amendments to the pleadings were offered. One of these was filed by George M. Moore and by Henry G. Moore, the latter defending for the use of one Staake, his grantee.. This amendment alleged .that, since the adjournment of the April, 1901, term of the court, Staake and the three sons had executed an-instrument of release, by which each had remised, released, and forever relinquished his cross-remainder under the will, the intention' being to vest in each “ an absolute estate, comprising a life-estate, cross-remainder for the life of the other, and the residuary estate, leaving ” each owning absolutely, and in fee simple one undivided one-third interest in the whole of the property involved in this case. George M. Moore also filed an amendment to his answer, in which he alleged that he was not and is not, on account of mental weakness, intemperate habits, wasteful and profligate habits, unfit to be entrusted with the right and management of property; that he was an active business man, about forty-five years of age, perfectly competent and qualified to take charge of, conduct, and manage his own property. He claimed that the trust for his benefit was invalid and that he was entitled to receive one third of the property or its proceeds, or at least the commuted value of his life-estate. Albert H. Moore also filed an answer making similar allegations as to his ability and fitness to take charge of and manage his property, and praying similar relief. The third son made no answer touching his habits or his fitness to be entrusted with the care and management of property. There was nothing in any of the answers or amendments to show that this third son, Henry G., is not a proper subject of a trust under the Civil Code, § 3149. It is true that Albert H. Moore’s answer did contain an averment that “ the conditions and grounds upon which said trust was created never existed, and, if they ever did exist, do not now exist,” but the context shows clearly that this allegation was meant to apply to Albert only, and was not intended to refer to Henry. The trial judge refused to allow these amendments, and ordered the proceeds of the property to be turned over to the executors and trustees under the will, first deducting the expenses of litigation. To these rulings George M. Moore and Albert H. Moore excepted. Numerous points were made in the record and argued here, and counsel for the defendants in error suggested several reasons why the amendments offered below should not have been allowed. As there is no error in refusing an amendment when it and the pleading sought to be amended do not, taken together, state a cause of action or a defense, and as we think this principle applies in the present case, we shall discuss none of the questions raised, except whether, had the amendments been allowed, the sons would have been entitled to any relief thereunder.

Henry G. Moore apparently acquiesced in the judgment of the court below, for he is not a party to the bill of exceptions here. But, regardless of this, the controlling fact in the case is that the amendments offered failed utterly to allege that the spendthrift trust is not good as to him. That trust must be treated as valid in so far as he is concerned. . The item of the will which created the trust expressly provided that the trust property should not be subject to his debts or to be disposed of by him'. This provision against alienation was intended to secure the property against his improvidence and want of capacity to manage it, and will be enforced by the courts so long as the spendthrift trust subsists for bis benefit. He therefore had no power to defeat the objects of the trust by releasing all or any part of the property. His portion must be held for his' benefit by the trustees, and the instrument by which he sought to alienate a portion of his interest can not affect the rights of the trustees to hold and manage his share of the property.

It must follow that the trust is still executory, and that the trustees are entitled to the possession of the property during the life of Henry G-. Moore. They are entitled to control, not merely^ one third of it, but the whole. Under the cross-remainders in the will, he would be entitled, if he survived bis brothers, to the income for bis life from their shares of the estate, and the trustees would hold the property for bis benefit under the trust. While the other brothers may not be, individually, subjects of a spendthrift trust, yet, if this one is subject and still lives, with a right to the income from one third, or one half, or all of the property, according as all the brothers, or he and one other, or he only, survive, the trust is certainly executory, so long as be lives, as to all the property. “ Something remains to be done by the trustees,” and they are entitled to hold and manage the property. Eor these reasons, there was no error in the refusal to allow the amendments offered, or in the order that the proceeds of the trust property should be turned over to the executors and trustees under the will.

Judgment affirmed.

By four Justices. Lamar, J, disqualified.  