Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, §§ 3779 and 3786, former Code 1933, §§ 108-117 and 108-501, former O.C.G.A. §§ 53-12-1 and53-12-150, and former O.C.G.A. § 53-12-4 of the 1991 Trust Act are included in the annotations for this Code section.

Effect of section.

- Former Code 1933, § 108-501 created a method, unknown to the common law, by which a person having a claim against a trust estate for services rendered to the estate, for articles of property or money furnished for the use of the estate, or any claim for the payment of which a court of equity would render the estate liable, may pursue directly the assets of the estate itself. In such actions the trustee is made defendant. A judgment rendered in such proceeding does not impose liability upon the trustee personally, but binds only the trust estate. Oberdorfer v. Smith, 102 Ga. App. 336, 116 S.E.2d 308 (1960) (decided under former Code 1933, § 108-501).

Trustees as only necessary parties.

- Claim against a trust estate "for services rendered to said estate, or for articles or property or money furnished for the use of said estate, or any claim for the payment of which a court of equity would render said estate liable," may be enforced in a court of law, and in such a case the trustees are the only necessary parties. Zeigler v. Perry, 37 Ga. App. 647, 141 S.E. 426 (1928) (decided under former Civil Code 1910, § 3786 et seq.)

This new remedy is merely cumulative of common law, and it does not abolish the common law liability of the trustee personally either in tort or contract. Thus, if one wishes, a claimant may bring an action against the trustee individually. Oberdorfer v. Smith, 102 Ga. App. 336, 116 S.E.2d 308 (1960) (decided under former Code 1933, § 108-501).

Ordinarily, a charitable institution or corporation is not liable for the negligence of its officers and employees unless it fails to exercise ordinary care in their selection or fails to exercise such care in retaining them. A petition praying for general damages to be satisfied in part from charitable trust funds fails to state a cause of action when the petition fails to allege that the defendant was negligent in selecting or retaining employees. Burgess v. James, 73 Ga. App. 857, 38 S.E.2d 637 (1946) (decided under former Code 1933, § 108-501).

By parity of reasoning as regards those cases of statutory money rule against levying officers, which are not equity cases, and those of set off allowed by statute, the pursuit of the remedy allowed by statute does not make an "equity case" of which the Supreme Court has exclusive jurisdiction. Robinson v. Lindsey, 184 Ga. 684, 192 S.E. 910 (1937) (decided under former Code 1933, § 108-501).

Necessity of establishing facts.

- Claim against trust estate for services or for articles or money furnished to trust estate may be enforced in either court of law or court of equity. But in order to subject a trust estate to an obligation, the specific facts which render the estate liable for the debt claimed must be alleged and established by evidence. Aiken v. White, 208 Ga. 572, 68 S.E.2d 149 (1951) (decided under former Code 1933, § 108-501).

Trustee is amenable to court of equity for faithful administration of trust. Hardware Mut. Cas. Co. v. Dooley, 193 Ga. 882, 20 S.E.2d 420 (1942) (decided under former Code 1933, § 108-501).

Jurisdiction generally.

- All trusts are matters over which courts of equity may exercise jurisdiction in this state. O'Callaghan v. Bank of Eastman, 180 Ga. 812, 180 S.E. 847 (1935) (decided under former Code 1933, § 108-501).

To preserve a trust estate, to supervise the estate's management, to hold the trustee to the line of duty, for the purpose of preserving the trust's corpus for the benefit of the beneficiaries, is an elementary branch of equity jurisprudence. The judge of the superior court of each county has power, either in term or at chambers, to remove and appoint trustees. When a court of equity obtains jurisdiction for one purpose, it will proceed to give full relief to all parties with reference to the subject matter of the action where it has jurisdiction for that purpose. Fine v. Saul, 183 Ga. 309, 188 S.E. 439 (1936) (decided under former Code 1933, § 108-501).

If a will expressly creates a trust and imposes special fiduciary duties on the person named executor, not as executor but as a trustee, and the executor has expressly or impliedly assented to the gift and taken over the property as trustee, it is plain that the executor is not amenable to a proceeding in the court of ordinary (now probate court), brought by a legatee for an accounting and settlement with respect to the trust; but relief must be sought by equitable action in the superior court where the defendant resides. McDowell v. McDowell, 68 Ga. App. 363, 22 S.E.2d 851 (1942) (decided under former Code 1933, § 108-501).

Although a will does not in terms create a trust, yet the manifest purpose of the language and the exigencies of the case require that equity shall decree and enforce a trust, the trust will be raised by implication, and the rule is the same. McDowell v. McDowell, 68 Ga. App. 363, 22 S.E.2d 851 (1942) (decided under former Code 1933, § 108-501).

Courts of equity have jurisdiction to compel trustees to account for the trust funds in their hands, especially when the accounts are complicated. Keaton v. Greenwood, 8 Ga. 97 (1850) (decided under former law).

Probate court properly found that the court did not have jurisdiction to rule on a petition seeking an order from the court voiding a trust created by a guardian's brother for the benefit of a ward and seeking return of the assets in the trust to the ward as trusts of every kind were peculiarly subjects of equity jurisdiction. In re Longino, 281 Ga. App. 599, 636 S.E.2d 683 (2006), cert. denied, 2007 Ga. LEXIS 92 (Ga. 2007) (decided under former O.C.G.A. § 53-12-4).

If trustee omits to act when required by duty to do so, or is wanting in necessary care and diligence in the due execution of the trust which the trustee has undertaken, a court of equity will interpose. Jones v. Dougherty, 10 Ga. 273 (1851) (decided under former law); Fine v. Saul, 183 Ga. 309, 188 S.E. 439 (1936);(decided under former Code 1933, § 108-117).

If the trustee omits to act when required by duty to do so, or is wanting in necessary care and diligence in the due execution of the trust which the trustee has undertaken, a court of equity will interpose. The relief granted will always be molded and framed so as to render the trust effectual, and secure the best interests of all parties. A court of equity, having assumed jurisdiction over the trust for one purpose, will give effect to all the rights of the beneficiaries. Clark v. Clark, 167 Ga. 1, 144 S.E. 787 (1928) (decided under former Civil Code 1910, § 3779).

Interference with discretionary power.

- In the case of trusts cognizable in a court of equity only, if the trustees have a discretionary power to be exercised according to their judgment a court of equity will not interfere to control the trustees acting bona fide in the exercise of their discretion. Semmes v. Mayor of Columbus, 19 Ga. 471 (1856) (decided under former law).

Equity has jurisdiction over charitable and religious trusts and uses it in a particular and special manner. Harris v. Pounds, 64 Ga. 121 (1879) (decided under former law).

Settlement of trust estate upon termination.

- Court of equity has jurisdiction to settle a trust estate at the time provided for the termination of the trust. That a court of law may have concurrent jurisdiction will not oust that of a court of equity. Park v. Park, 65 Ga. 746 (1880) (decided under former law).

Executors are trustees and are amenable to a court of chancery (now court of equity) for the faithful discharge of their trust. Johns v. Johns, 23 Ga. 31 (1857) (decided under former law).

Article furnishes adequate remedy.

- On the subject of trusts and the mode of enforcing relief against trust estates justly indebted to those having claims upon them, our law is plain and furnishes a simple and ample remedy. Moore, Jenkins & Co. v. Lampkin, 63 Ga. 748 (1879) (decided under former law).

If the plaintiffs seek to get a judgment against a trust estate for services rendered for such estate, plaintiffs must bring their action in accordance with the law; an ordinary judgment cannot be stretched to fit such circumstances. Blanford & Thornton v. McGehee, 67 Ga. 84 (1881) (decided under former law).

This entire statute simply means that any person having a valid claim against a trust estate may collect and enforce the payment of the claim without resorting to a court of equity, and the statute does not limit the liability of trust estates to the payment of such claims only as are indicated by the words "for services rendered to said estate, or for articles, or property, or money, furnished for the use of said estate." Miller v. Smythe, 92 Ga. 154, 18 S.E. 46 (1893) (decided under former law).

Depletion by subjection to liability for negligence of trustee.

- Charitable trust funds may not be depleted by subjection to liability for negligence of trustee. Burgess v. James, 73 Ga. App. 857, 38 S.E.2d 637 (1946) (decided under former Code 1933, § 1-8-501).

Enforcement of contractor's lien for improvements of trust estate is authorized. Williams v. Chatham Real Estate & Imp. Co., 13 Ga. App. 42, 78 S.E. 869 (1913) (decided under former law).

Sale of church edifice for pastor's salary.

- Trust property of an unincorporated church in the hands of trustees can be subjected for a debt duly incurred to the pastor for salary and rent of parsonage, and, in the absence of other property, the church edifice and site in the hands of trustees can be subjected for such a debt. Kelsey v. Jackson, 123 Ga. 113, 50 S.E. 951 (1905) (decided under former law).

Foreclosure of mortgage on religious property.

- When title to trust property is in trustees who appeared to represent an unincorporated religious institution and they executed a mortgage thereon, a proceeding to foreclose and subject the property to payment may be brought and the trustees are the only necessary parties. Langford v. Mount Zion Baptist Church, 22 Ga. App. 696, 97 S.E. 102 (1918) (decided under former Civil Code 1910, § 3786).

Trial court's discretion as to accountings.

- Appellate court erred by reversing a trial court and ordering that the trustees provide the beneficiaries of a family trust the accounting sought because the appellate court failed to give any consideration to the trial court's discretion to require or excuse an accounting. Rollins v. Rollins, 294 Ga. 711, 755 S.E.2d 727 (2014).

Cited in Timmons v. Citizens Bank, 11 Ga. App. 69, 74 S.E. 798 (1912); Manget v. National City Bank, 168 Ga. 876, 149 S.E. 213 (1929); Sheldon & Co. v. Emory Univ., 52 Ga. App. 628, 184 S.E. 401 (1936); Farkas v. Stephens, 54 Ga. App. 706, 188 S.E. 919 (1936); Hardware Mut. Cas. Co. v. Dooley, 193 Ga. 882, 20 S.E.2d 420 (1942); McDowell v. McDowell, 194 Ga. 88, 20 S.E.2d 602 (1942); Smith v. Jarrett, 76 Ga. App. 525, 46 S.E.2d 626 (1948); Salter v. Salter, 209 Ga. 90, 70 S.E.2d 453 (1952); Rockefeller v. First Nat'l Bank, 154 F. Supp. 122 (S.D. Ga. 1957); Cohen v. Barris, 220 Ga. 131, 137 S.E.2d 469 (1964); McCann v. McCrain, 228 Ga. 814, 188 S.E.2d 484 (1972); Ray v. Beneventi, 220 Ga. 209, 190 S.E.2d 514 (1972); Tyler v. Borland, 157 Ga. App. 332, 277 S.E.2d 325 (1981); Citizens & S. Nat'l Bank v. Haskins, 254 Ga. 131, 327 S.E.2d 192 (1985); Davison v. Hines, 291 Ga. 434, 729 S.E.2d 330 (2012); Hasty v. Castleberry, 293 Ga. 727, 749 S.E.2d 676 (2013).

Statute of limitations.

- When a former petition was brought against a defendant as trustee of an alleged beneficiary and trustee, praying for a judgment against the defendant only in such representative capacity and against the described trust property, a petition brought within six months after a dismissal of the first, against the defendant only in its individual capacity, praying only for a general judgment against it, is not a renewal such as will toll the statute of limitations, since it involves a substantially different defendant and shows no exception to the general rule as to the requirement of identity of parties in order to suspend the statute of limitations. Sheldon & Co. v. Emory Univ., 184 Ga. 440, 191 S.E. 497 (1937) (decided under former law).

Am. Jur. 2d.

- 76 Am. Jur. 2d, Trusts, § 267.

C.J.S.

- 90 C.J.S., Trusts, § 203.

ALR.

- Power of probate court to require attorney to return to estate or trust overpayment on account of fees or services, 70 A.L.R. 478.

Conflict of laws as to administration of testamentary trusts, and proper forum for judicial proceedings relating thereto, 115 A.L.R. 802.

Purchase by executor, administrator, or trustee of claims against estate or trust, 128 A.L.R. 917.

Doctrine of constructive trust or unjust enrichment as applicable between owner and one who fraudulently procures tax certificates, 175 A.L.R. 700.

Jurisdiction of suit involving trust as affected by location of res, residence of parties to trust, service, and appearance, 15 A.L.R.2d 610.

Power of court to extend term of trust, 46 A.L.R.2d 907.

Power of court to authorize modification of trust instrument because of changes in tax law, 57 A.L.R.3d 1044.