
    BAILIE et al. v. CAROLINA INTERSTATE BUILDING AND LOAN ASSOCIATION et al.
    
    "Where in the year 1886 a trust was raised for the benefit of a. married woman during her life, with remainder over to ¡her children, and by the instrument creating the trust, power was conferred upon the trustee to manage the trust estate, and in his discretion to make changes in the investment, and to that. end the trustee was authorized, with the written consent of. the life-tenant during the continuance of her estate and without her consent after her death, to pledge, mortgage, sell,, exchange or otherwise dispose of all or any portion of the trust property, the trust thus created was an active, not a. passive one, and remained active until executed. It extended, over both the life-estate and the remainder, and was not executed as to the life-tenant eo instanti upon its creation, nor would it become executed after her death during the minority of any of the children. And when, during the continuance of such a trust, the trustee in the management of the trust-estate subscribed to the capital stock of a building and loan association and executed to it notes secured by deeds to the. trust property, as a means of raising money to he used, and which was in fact expended by him, in the improvement oh the trust property, the powers conferred were well exercised, and the trust property was liable for the indebtedness thus, secured.
    Argued November 2,
    Decided November 16, 1896.
    Petition for injunction, etc. Before Judge Callaway. Richmond county. Septehnber 7, 1896.
    'George N. and Joseph. A. Bailie and Louisa Bailie Pollard brought their petition against the Carolina Interstate Building & Loam. Association, George A. Bailie trustee, Sarah R. Bailie life-tenant, and against the receivers of said association. Petitioners are the ’children of George A. and Sarah R. Bailie, and remaindermen tinder a deed of April 19, 1886, from George A. Bailie to James E. Harper-styled a trustee. Erom this deed it appears that the consideration thereof was love and 'affection of the grantor for his wife Sarah R., and her children Toy him. The conveyance was, “unto said party of the second part, upon the trust and limitations herein mentioned, liis successors and assigns.” The conveyance was of twenty acres of land. The habendum clause was, to hold the property “unto the said party of the second part, his heirs, successors in office, and assigns, upon ithe uses, trusts and limitations hereinafter expressed, that is to s'ay, in trust nevertheless to and for the sole and separate use^ benefit and behoof of Sarah R. Bailie, wife of the said party of the first part, for and . during the term of her natural life, free from the debts^ liabilities, contracts or control of ber present or any future , husband as such, with remainder at her death to her child' or children by the present husb'and then in life, the child or children of a deceased child to stand in the place of a parent, and the distribution to be per stirpes and not per capita. But should said Sarah R. Bailie die leaving no such child or issue of such child her siuwiving, then with remainder to said Getorge A. Bailie, or his heirs. If at any time the . net income of said real estate, or other property real or personal into Which it may be converted as hereinafter pro^ vided, should fall short of -the sum of on‘e hundred dollars per month or twelve hundred dollars per annum, then and in that event this [said] Sarah R. Bailie shall, for each and every year in which the net income falls short of said sum, be entitled to receive from the corpus of the estate such a . sum yearly as will make up the deficiency and make the in•oome received by her equal to twelve hundred dollars over •and above all taxes, insurance and repairs. And the trustee for the time being, for the purpose of raising money with which to' pay said deficiency, is authorized by instrument in writing in which said Sarah R. Bailie joins, to' pledge, • mortgage, sell and convey, privately or publicly, without ■ the order of any court, a sufficiency of said real or personal ^property at his discretion to enable the payment of said deficiency to be made. And tbe trustee for tibe time being, unless restricted as hereinafter mentioned, for the purposes ■ of managing said trust estate and changing the investment-thereof, is hereby authorized at my tima by instrument in -waiting in -which said Sarah R. Bailie voluntarily joins-during her life, and without her joining after her death, to pledge, mortgage and sell, exchange or otherwise- dispose of all 'or any portion of the estate real and personal as he ■ may dteean best, toe pledgee,, mortgagee, purchaser or other interested party not being required tie see after the proper • application of toa proceeds, and snob reinvestments to' be held upon the same uses, trusts and limitations as the origi- • nal property was held, and so from time to time to change ■ the investments whenever and as often as he deems it advis- • able. -Should the office of toe trustee at any time become. vacant by toe death, resignation, and removal of any trustee from toe State Or from any -other cause, any trustee-being permitted hereby to- resign at any time- be so- desires, the said Sarah R. Bailie by instrument in writing executed. before two witnesses may appoint her husband George A. Bailie or any other fit and proper person in the place of toe-said party of the second part; or any successor. And the • person So appointed shall at once upon acceptance of toeappointmenti become invested with all the power and authority herein conferred upon said party of the second part,, if toe instrument so appointing him so provide-; but if toe" said Sarah R. Bailie soi desires, she is authorized to- restrict--, the pewter and authority of any succeeding -trustee to- those-conferred under the terms and provisions- of to© code of' Georgia and toe amendments thereto, and in toe event of' such restrictions being imposed toe same shall be valid and binding. The trustees under this deed are relieved, however, from th© duty of making anmulal returns to any court.” ’
    The petition alleged: Under this deed 20 acres more orles’s in the city -of Augusta were conveyed, which land was-entirely vacant with toe exception of two -or toree small! houses thereon, and was of the value of $50,000. The. original so-called trustee, Harper, resigned April 19, 1886, and Sarah R. Bailie in pursuance of the supposed power under 'the deed appointed George A. Bailie trustee in the place of Harper, which appointment was accepted by Bailie April 19, 1886, 'and in pursuance of which he has been in possession of all the property passing under the deed ever since. There is now pending in the city court of Richmond county, a court of law without equitable jurisdiction, an action brought July 15, 1895, by the building and loan association against George A. Bailie as trustee and Sarah R. B'ailie, for $7,841.48, for which judgment is prayed against the defendants generally, and particularly against the property set forth .as security in the instruments annexed to the petition in said case; copy of which with the exhibits and amendments is attached. Said petition shows that plaintiff therein is a corporation of North Carolina, and that said Bailie, claiming to he the trastee of the property hereinbefore specified, conveyed a large portion thereof on May 25, 1891, to said association 'to secure a toan of $2,500, and on October 30, 1891, to secure a loan of $7,500, which conveyances and obligations representing the receipt of said m'oney were duly signed by George A. Bailie as trustee for Sarah R. Bailie and children, and joined in by Sarah R. as life-tenant. Said association afterwards amended its petition by setting out a. copy of the deed from Bailie tb Harper, 'and averred that under the terms of said deed Bailie was given full power upon consent of the life-'beniant to malic the transaction set out in the papers of May 25, 1891, and October 30, 1891; and after-wards further amended by alleging that the association had failed and its assets been placed in the hands of said receivers, and asking that the suit be allowed to proceed in. the name of the receivers. Petitioners in the present case deny that the powers in the deed of April, 1886, are still of force, or were of force at 'the time of the attempted making of said contracts of May 25, and October 30, 1891, for tbe reasons hereinafter set out; and deny that said powers, if held to be in existence at said time, were sufficient to authorize the so-called trustee, if he was their trustee, which they deny, to make the contract represented by the instruments of those dates. The powers in said deed did not authorize the trustee 1» borrow money to make improvements upon the property, nor authorize the trustee himself to create the necessity for the purpose of using said power, the estate at the time not being indebted to> any person, being only liable for ordinary governmental charges. Said powers did mot authorize the trustee as such, in the name of the trust-estate and for the supposed use and benefit of the trust-estate, to become a stockholder iu said North Carolina corporation and charge the trust assets with the obligations, liabilities, dues, penalties and restrictions imposed by its charter, rules and by-laws on its member's and stockholders, which are onerous in the extreme. Without any authority whatever said so-called trustee on May 25, 1891, subscribed for twenty-five shares of stock in the association, and on October 30, 1891, for seventy-five shares., of the par value of $100 each, and .thus illegally incurred an obligation of $10,000 on, the part of the trust property, and thereupon the association issued its stock certificate to him as trustee for the 100 shares. This subscription 'and the fees paid for the stock enabled the so-called trustee as the representative of the trust-estate to borrow mloney from said corporation, which he did to the extent of $10,000. Bor the purpose of securing these loans the corporation after issuing the stock had the same transferred to. it, and held the same as security for said loans represented by the obligation of May 25, and October 30, 1891, made by the trustee and life-tenant, who also as additional security conveyed to it a large quantity of the land of the trust-estate as set out iu deeds of the same dates. There was no necessity for the trustee to incur such obligations, and petitioners have newer ratified nor approved the same; they are not binding upon tire trust-estate nor petitioners, but said action was a misapplication of the trust-estate, which was known to said company. Petitioners are apprehensive that judgment may be rendered against the trustee or the trust-estate in the suit above mentioned, and it is necessary for them, not being parties thereto, to apply to the- court of chancery and object to- the further progress thereof, before any j udgment should be rendered against the so-called trustee, which may be claimed to bind the trust-estate 'and petitioners. The association prays judgmemitfor $7,387.50, with interest .at six per cent, from July 24, 1895, which is contrary to the laws of North Carolina, the Supreme Court of which State has expressly directed said receivers as to the mode in which they shall settle with all the debtors of the association [setting o-ut the terms of said direction. See 25 S. E. Rep. 450.] Notwithstanding this direction and though the amount of the loan upon said seventy shares of stock was only $7,502.30 and on the twenty-five shares only $2,681.18, the total on July 24th being $10,183.48, and the credits hy payments made to which said trustee is en•titled on the loan on seventy-five shares amount to $5,133, .and payments on the loan on -twenty-five shares to $1,-711.91, the total payment of $6,844.91, leaving a balance due of $3,338.57, yet the- receivers refused to settle with the trustee on the payment of such sum, but insist that the ■trust-estate should only be allowed one half of the payments made on the stock, claiming that -the trustee ’and trust-estate is liable as a stockholder for the general debts of the association, and only propose to. 'allow a credit of $2,795.98; .all of which is inequitable and unjust to petitioners, and .arises from unauthorized action of the so-called trustee in investing in stock not authorized by the laws of Georgia, .and which was known to the association, and also in making the loan thereon for the purpose of erecting improvements upon the property, which is unauthorized by the powers in. the trust deed, and -which impose no- such duty upon the so-called trustee, and which he was under nO- obligation to-do for the benefit of the trust-estate of petitioners, but iu so doing acted upon- his own- direction; 'the -only powersgiv-en the trustee in the deed to- borrow money being tio raise the annuity due to S'arah B. Bailie of $1,200 each year, hut on no- occasion has he done this, and at no- time has she received the annuity of $1,200. At the time the contráete of May 25, and October 30, 1891, were made, the powers of the trustee were exhausted, because they were annexed to the office of trustee and depended for their' existence and exercise upon thei “trustee for the time-being,” when as a matter of fact fiber© was no such trustee-of the trust-estate upon the existence of which said powers-were predicated, it having become executed when made, the trust-deed being for -the benefit of a married woman for life, with legal remainder in her children, ther'e being no-duty imposed upon the trustee for the benefit of the remaindermen, their interest being fully protected by the law and. no necessity existing for them to have a trustee, as they .w'ere not entitled to posses&iton until the -end of the life-estate, nor necessity for -a. trustee for them afterwards, this-duty being solely to manage the estate so as to give the life-tenant an annuity of $1,200, which she could do herself,, and to -change the investment if desired from, time to time,, to do which alone does not ’authorize the creation of a trust-estate. Afe Mrs. Bailie was a married woman, under the law of Georgia she did not need a trustee nor could a trust he created for her benefit; nor did the trustee hold for petitioners as remaindermen, having no- duty to perform for them; and even if said bro-ad powers are still of force- (which petitioners deny, claiming that said powers ceased to exist when, the necessity for the trustee ceased to- exist -aud upon th© •execution -of the trust), they do- not authorize the trustee- to make any investment which the law itself does not authorize, hut simply provide easy methods to make au investment ■when one was authorized, but did not authorize the investment in said stock. The trustee and life-tenant have committed acts as aforesaid to 'the permanent injury of petitioners, have permitted ¡a portion of the taxes to accumulate and remain unpaid, so 'that the life-estaite in the property is ended and petitioners are entitled to. enter a't once thereon alnd receive the property free from all restrictions. When the suit ait law wias brought petitioners 'ascertained for the first time the condition of affairs. They pray, that the action in the city court be enjoined until final decree; that the trust b'e declared to have been executed when the deed was made, and the legal effect of the deed to pass title for life to Sarah R. Bailie with remainder to petitioners.; that 'the pow'ers in the trust deed being predicated upon ’the supposed existence of the trust be held nugatory and Void; that the subscribing for stock in the association, making payments thereon from the trust-estate, and pledging the same ais well as the title to the trust-estate as security, were actsnul tiel the trusteeship and void; that a receiver be appointed to take charge of the trust-estáte and hold it subject to the further order and decree of the court; th'at. 'the deeds-of Hay 25 ’and October 30, 1891, be decreed void and can-celled as clouds on the title of petitioners; for am accounting showing what is the principal debt with interest at six per cent, to July 24, 1895, .and also what has been paid by said trustee to the association, and whait is the interest, thereon from -the date of the payments until JTuly 24, 1895, and what is the balance remaining unpaid; that the association and receiver’ bei required to produce certain books> paper’s, records, etc.; and for general relief.
    By amendment it was alleged: This is but one of many transactions by the trustee. ITe has borrowed Targe sums from other bidlding associations, as set out in an exhibit of an account rendered by him, and conveyed practically all of the trust-estate, and illegally “invested and improved”' plaintiffs out of their estate. 'The estate is now practically insolvent, and the whole will he lost to plaintiffs, through the illegal action of the trustee in seeking to permanently improve the vacant trast-efetate. Toy borrowing money and .erecting buildings thereon. The trustee has mot the means to respond to a judgment against him for his illegal acts. Besides being trustee he Was the local agenit of the association at Augusta. Iiis compensation to be received was two per cent, of all sums collected by Mm in payments in stock or interest or instalments- on loans made by the company, and this amount was received by him on all the payments made on the debt incurred by him as trustee. In so- making said loans 'he did not represtent the trust-estate, but said association. Petitioners did n'ot know of thei loan ma.de said trustee until long afterwards, and have objected to- Me said actions when known. His -efforts have permanently improved the- estate to four times Its former value as vacant land.
    To tMs petition the defendants (except George A. and ;S'arah It. Bailie) demurred on numerous grounds, and made .answer from which the following appears: The value of the land Conveyed by Georg© A. Bailie to- Harper, trustee; ■did not exceed $25,000. Harper was duly and regularly .appointed trustee; full and absolute powter was. conferred by the deed upon the original trustee for -the purpose therein named, and George A. Bailie succeeded to. all the powers of the original trustee, by -proper appointment duly made by ithe lifer-tenant. The city court had jurisdiction •of the case sought to be enjoined. The defendants in that •case, George A. Bailie as trustee for petitioners, and Sarah B. B'ailie, at the appearance term of the case, filed their demurrer and sub j eot thereto their plea and answer. On May '9, 1896, said demurrer came 'on to be heard before the judge of that court, and was overruled except as to. question of individual liability of Sarah R. and Geiorg© A. Bailie. (Copies of these proceedings .arte attached.) The city -court lias concurrent jurisdi'ction over suits against trust-esriaites, and having first taken jurisdiction, a court of equity will n’either enjoin the suit nor oust the jurisdiction of the city court in the premises. On April 19, 1886, the. life-ten'ant, exercising the power of appointment conferred upon herhy the trust deed upon the resignation of Harper, refused to restrict Ms powers to those given in the code, as she had a right to- do-, hut appointed her husband to- succeed him in the -office of trustee in the manner prescribed by the deed, “with all the- power -and -authority conferred upon the original 'trustee by the terms of said deed.” Said powers-were conferred upon the- trustee, Bailie, as successor in the trust, and are now and were of force ait the time he -executed the contract with the -association; said-powers were executed in t-h'e manner prescribed by the deed, and were sufficient to authorize Bailie, as trustee for petitioners and Sarah R. Bailie, to make- the contract referred to, to borrow money of the association, -and in the management of the trust-estate to apply the same to' the. improvement of the trust. The question of borrowing money and making improvements upon the. trusit-estate was a matter left solely to the trustee in the management of the estate, and the improvements made by Mm have enured to the benefit of the trust-property. He was thoroughly familiar with the scope and intent of the trust under the trust -deed, and the same was made by Mm individually for the purposes- therein contained. His powers did authorize him as trustee', with concurrent action of ithe life-temaint, to become a stockholder-in thle association. His application to become a member of the association was for loan stock, and was- made for the sole purpose of borrowing to the -amount of $10,000, which was made to- him as trustee at different times for the- two loans. This money was lent to him to- improve the trustestáte and for nio- other purpose, and was so ’applied by him, and if any part of it was diverted to any other -purpose defendants have mo knowledge thereof. TTnd'er the trust deed the lender of the money is expressly relieved from.
    
      looking after the application of the same. In the exercise of the powers of trustee and pursuant ito thie requirements of the 'association, the trustee executed his obligation in the nature of a bond and secured payment thereof by pledging the title 'to- c-ertain realty of the trust-estate to the association, and the life-tenant voluntarily joined therein as required hy the terms of the trust deed. The stock was also transferred to- the association under its rule- requiring the same as collateral security. The defendant executed its obligation to- re,convey the property. There was, nothing irregular or illegal in thie transaction, nor were said acts of the trustee in exe-ess of his, legal authority under the deed and under the law. The trusteei, in the exercise of his discretionary powers, acted in good faith. "Whil-e the- money lent the trustee has been app-li'ed to the improvement of the trust-estate and enured to the benefit of petitioners, they propose fraudulently to- hold the benefit 'of said improvements, which were in the nature of purchase-money, and return no equivalent to- these defendants. Defendants do not know whether there -existed any necessity for the trustee to borrow money, and are not concerned with the in^ quiry o-r knowledge of this fact; but petitioners had full knowledge thereof and knew that 'the improvement was being made with the money of the association, and neither of them at -any time-objected or gave notice of their objection, but have acquiesced therein. The right of determining the necessity -of borrowing money for the improvement of the trust-estate, under the deed of trust, was- lodged solely in the trustee and rested in the exercise of the discretionary power’s conferred upon him. Petitioners cannot call into question the exercise of such powers, nor can a court of equity review the same, -in the absence -of allegations making a clear case- of mismanagement, waste or abuse, nor does the exercis’e or Validity of said powers depend upon petitioners’ -approval, they being minors when the trust was created and when the contract with the associtation was made. It is not true that petitioners ought to "be made parties in the city court. They arte there represented by their trustee. On March 6, 1896, counsel of record for the trustee and life-tenant orally moved the court to make petitioners parties defendant, which the •count declined to do-, holding that they were represented by the trustee. It is not true that on May 25, 1891, and October 30, 1891, the powers of Bailie as trustee were exhausted, but on the contrary he was the active trustee for the time being, duly 'appointed and vested with all the powers of the original trustee. "While it is true the trust Was for the benefit of a married woman for life, the remainder is not vested until the death of the life-tenant, 'and as yet the remaindermen are uncertain. If the .act of 1866 executed the trust as to the life-tenant, it certainly had no effect upon the remainders, which are contingent. The legal title is Vested in the trustee, and the trust was created for the life-tenant as well as for the remaindermen, and the ■trustee holds the legal title in any view for the purpose of th’e execution of the powers set forth in the trust deed. Under the deed of trust he is charged with the duty of raising an annuity for the life-tenant, and with the management of the estate as he will deem best in making rein-vestments, and 'in the exercise of all either powers given him under the trust deed. It is mot true that any act in connection with Bailie as trustee in- transactions with either of these defendants has brought any permanent injury to petitioner's, nor is it true that taxes have accumulated and have remained unpaid by the trustee. If so-, these defend.ants are in no wise responsible therefor. Neither the life-tenant nor the remaindermen have any right to the posses■sion of or entry upon the trust property as. a matter of law, while said powers and the execution thereof are vested in the trustee and 'are exercised by him.
    ’George A. Bailie as trustee and Sarah B. Bailie answered, not contesting the allegations of the petition. George A. Bailio alleged, that lxe 'liad thought that if he could get a sufficient amount of money to improve the trust-estate it-■would ultimately be for the benefit of the estate; but it appears now that this was a mistake and that the trust-estate is largely involved in debt; that the income from tlie trust-estate is not sufficient to me'et the tax'es, insurance, assessments and interest due upon the money borrowed from the association, and has not been for some considerable time; that tlie charges .against the trust-estate do- not. decrease While the income from the estate is steadily decreased by reason- of a failure to- obtain tenants as expected, the failure of 'the trust-estate to appreciate in value -as expected by Bailie when the money Was borrowed. He asked that the court would give such direction to the matter as would protect the interest of the trust-estate in his hands.
    Hpo-n, the hearing, beside, th© pleading's appeared the-written application made by Bailie as trustee, which set out that he desired to subscribe for 100 shares of the loan stock of the association and borrow $10,000 thereon with which to improve tlie other vacant property of the itrust-estate far in excess, of its value, and which real estate together with the stock he would pledge as security therefor. It also appeared that George A. Bailie was the local agent of tine association ait Augusta, and one of the board or committee passing upon the desirability of loans and recommending them to the 'association, and in -this capacity he recommended this loan ito the association, and upon this it was accepted and the transaction made by the association set out in. the petition; and that for his services in approving loans and in making collections of interest on them as they fell due, Bailie, as local director at Augusta, receives five per cent, commission.
    The injunction was refused, and petitioners excepted.
    
      Frank H. Mill&r and William K. Miller, for plaintiffs.
    
      Charles Z. McCord and J. '8. •& W. T. Davidson, fo.rdefendants.
   Simmons, Chief Justice.

On April 19, 1886, Georg© A. Biadli'e, by a deed the material portions of which are set out by the reporter, conveyed to Harper a certain tract of land in the city of Augusta, in trust for Sarah R. Bailie, 'the grantor’s wife, for life, with remainder over to her children. Harper accepted the trust, and resigned, and the life-'ten'ant appointed the grantor trustee in his steiad, the appointment being in writing, and conferring “'all the plower and 'authority conferred under the original trust, by the terms of said deed.” The execution of the deed, the acceptance of the trust by Harper, his resignation, and the appointment of Bailie and Bailie’s acceptance, took place on the same day. For the purpose of placing improvements upon the land conveyed by the deed, Biailie, as trustee, borrowed money from th'e Carolina Interstate Building & Roan Association, subscribing to stock in the association, and as security for the loan transferred this stock to the association and executed to it deeds to- the land. Subsequently the association filed in th'e city court of Richmond county a suit against Biailie, as trustee for 'his wife and children, and against Sarah R. Bailie, for the recovery of a balance alleged to be due upon the loan, and praying a special judgment against the land; and pending this action the children of Bailie brought their petition to' th'e superior court to enjoin the suit in the city court, and for other relief, claiming that Bailie had no power, under the deed in question, to- borrow the money or convey the land as security therefor. The questions made by th'e petition appear- from the reporter’s statement.

In construing an instrument of this .character, the cardinal rule is to seek the intention of the maker; and that intention should he upheld, unless it cle'arly contravenes som’e rule of law. That this gr'antor intended t© create a trust which should he an active; and hot a passive one, and which should extend over both the life-estate and the remainder, we think is clear; and there is ho rule of law which will be contravened by carrying out this intention. It is not essential to such, a trust that the legal title should be vested in tbe trustee further than is involved in the execution of his powers. Headen v. Quillian, 92 Ga. 220; Henderson v. Williams, 97 Ga. 709. The nature of the remainder is therefore of no consequence; nor does it matter whether, under the act of 1866, the legal title to the life-estate vested in the life-tenant. The property conveyed was a large tract of unproductive land in a city. The purpose of the grantor was to make a suitable provision for the support of bis wife and childreln, 'and that tbe property shionld be made to produce income. It w’as provided that the wife should receive from it at least $100 per month above “all taxes, insurance and repairs”; and in order to accomplish this the trustee was authorized to mortgage or sell the property. It was provided that, unless restricted as thereinafter mentioned, the trustee, “for th’e purpose of managing said trust estate and Changing 'the investment thereof, is hereby authorized at any time, by instrument in writing in which said Sarah R. Bailie joins during her life, and without her j oining after her death, to pledge, mortgage; sell or exchange or Otherwise dispose of all or any portion of the real estate and personal property as he may deem best,” and “from time to time to change the investments whenever and as often as he may deem it advisable.” It will be seen from this that -the trust was to continue after tbe death of the life-tenant. It is evident also that the grantor contemplated that he should be the trustee himself. It was provided that the trustee might resign -at any time be so desired, and that Mrs. Bailie might ¡by instrument in writing appoint her husband, tbe grantor, or any other fit and proper person as trustee; and as we have seen, immediately upon the execution of the deed the trustee named therein resigned, and the grantor wlas appointed in his stead, with all the powers conferred upon the original trustee. The powers conferred by the deed are about as broad as it is possible to confer upon a trustee; and we think there clan be no doubt that the grantor intended that he .■should have full power to borrow money upon the property .in the way he did, and for the purpose for which that money was borrowed. The rule ita. a case like this is that a trustee is invested w-iith sufficient power to execute the trust; and in •order to determine the power of the trustee the courts will look to th!e character of the trust estate. Miller v. Redwine, 75 Ga. 133. Taking into consideration the nature •of the property in question, it was clearly necessary, in order to carry out the intention of the grantor, that the power to' 'borrow mtoney for the improvement of the property should •exist. "We are not prepared to bold that the power was uot well exercised because the money was borrowed from a building and loan association, and a subscription to stock ■of the association made for that purpose. This is the usual mode of obtaining loans from such 'associations; and a similar transaction by the trustee was upheld by this court in •.the case of Harvey v. Cubbedge, 75 Ga. 793.

Judgment affirmed.  