Appendix — Evans v. Abney

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" SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1968

No. 1106

E. S. EVANS, ET AL., PETITIONERS,

v8.

GUYTON G. ABNEY, ET AL.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE

STATE OF GEORGIA

INDEX

Original Print

Proceedings in the Supreme Court of the State of

Georgia

Bill of exceptions 1 1

Judge’s certificate to bill of exceptions —...___. 4 4

Record from the Superior Court, Bibb County,

Georgia 12 5

Petition 12 5

Exhibits A & B—Last will and testament of

Augustus Octavius Bacon, dated March 28,

1911 and the codicil thereto, dated Septem-

ber 6, 1913 19 10

Answer of defendant, City of Macon —..____. 47 32

Answer of defendants, Guyton G. Abney, J. D.

Crump, T. I. Denmark and Dr. W. G. Lee, as

successor trustees, etc. 51 34

Motion for summary judgment 54 35

Motion of Rev. E. S. Evans et al. to intervene

and order thereon 56 36

Intervenors’ petition 59 38

ii INDEX

Record from the Superior Court, Bibb County,

Georgia—Continued

Amendment to plaintiff's petition and order al-

lowing

Petition of A. O. B. Sparks, Willis B. Sparks, Jr.,

Virginia Lamar Sparks and M. Garten Sparks

for intervention and order allowing a

Amendment to answer and cross bill and order

allowing

Amendment to answer of City of Macon and

order allowing i

Exhibit A—Resolution of the Mayor and Coun-

cil of the City of Macon adopted February 4,

1964

Exhibit B—Resignation of The City of Macon

as Trustee Under Will of Senator Augustus

Octavius Bacon

Amendment to intervenors’ petition and order

thereon

Order and decree

Resignation of The City of Macon as Trustee

Under Will of Senator Augustus Octavius

Bacon a

Acceptance of trust en eer ne

Clerk’s certificate (omitted in printing)

Motion to amend bill of exceptions :

Second motion to amend bill of exceptions

Motion of Charles E. Newton, et al. to substitute

parties defendant-in-error

Exhibit “A”—Resignation of Board of Managers

of Baconsfield

Exhibit “B”—Acceptance of Resignation of

Board of Managers; Appointment of New

Board of Managers and Acceptance of Ap-

pointment of New Board

Order granting motion to substitute parties de-

fendant-in-error, etc. :

Motion to add parties defendant-in-error and to

deny defendants-in-error’s motion to substitute

parties defendant-in-error :

Original Prins

6 4

69 45

72 47

76 50

79 51

94 61

95 62

99 64

101 66

102 67

103 67

105 67

110 69

115 70

119 73

120 74

122 76

125 77

Order granting second motion to amend the bill of

exceptions, ete.

Order granting motion by Charles E. Newton et al.,

defendants-in-error, ete.

Opinion

Opinion, Almand, J.

Judgment .........-

Motion for rehearing -......-.-...-----.--c-c-cecccserenenseeesesssseees

Certificate of probable cause for rehearing ........

Order denying motion for rehearing ..................-.-.--

Clerk’s certificate (omitted in printing) ..................

Order extending time to file petition for writ of

certiorari .......

Order allowing certiorari

Opinion of Supreme Court of Georgia in Evans

et al. v. Newton et al.

Motion for summary judgment ..................-..-.--.

Amendment substituting parties .............----.----.-------

Interrogatories ......-------------+

Answers to interrogatories

Response to motion for summary judgment by

intervenors ..

Response to motion for summary judgment by

successor trustees ......

Response to motion for summary judgment by

executors

Interrogatories si

Answer of Board of Managers ............----.----0-+0-+

Second set of interrogatories .............-----.-----eeeeeeee

Answer to interrogatories ..............

Depositions of Mayor, et al. ........

Intervenors’ supplemental response to motion for

summary judgment .........-.-2--------eseceeeenecsesnsneenseceees

Exhibit “B”—Minutes of meetings of Board of

Managers—Baconsfield ...........-..-.-----0-ce-e-eeeeeeee

iii

Original Print

130 79

131 80

132 81

141 85

147 89

148 89

151 91

153 92

154 92

155 93

156 94

131 95

136 98

143 105

145 107

151 113

157 119

161 123

164 125

166 127

172 133

182 142

185 144

193 147

371 242

506 246

iv INDEX

Voitume II

Original Print

Excerpts from Exhibit “E” 595 = 347

Exhibit “F”—Indenture dated February ‘4,

1920 “ 650 353

Exhibit “G”—Indenture dated February 4,

1920 : . 653 =. 357

Amendment to motion for summary judgment—

| | § Ieee 662

Exhibit “A” annexed to foregoing 664

Exhibit “B” annexed to foregoing .................... 671 376

Exhibit “C” annexed to foregoing .................... 676 382

Exhibit “D” annexed to foregoing ................. 678 384

Excerpts from resolution of Mayor and Council ... 686 389

Order making Attorney-General a party to case .... 687 390

Intervenors’ second supplemental response to mo-

tion for summary judgment penticatiionliniahenenidititis 695 393

Affidavit of William H. Alexander... 708 403

ie, 2 Ce 710 3 3§=— 405

ie gg Ce Oi 713 408

ge = ; 715 = =410

_... 2. ae ; 718 413

ie 720 = 415

a gE a " 721 416

.. Sa 722 2 8= 417

ee a ee 723 418

ie gp SE as ee 724 419

gO a ee 847 443

Intervenors’ third supplemental response to motion

for summary judgment... 917 454

kt EES 919 456

_. > oe ee 921 458

i gS RE ER eS ae SM 924 461

Supplement to motion for summary judgment as

ve ge CS CY oT IE 930 462

Second supplement to motion for summary judg-

ment as amended

EE IEE” hcccieiatusciinnienmniteniamnints

gee

IG TE scuienbnchicnsceiemaane a i

oom ne

>,

Response by ar General to motion for sum-

mary judgment .. ;

Order and decree ......

Notice of appeal ..............

Enumeration of errors .............

Decision and opinion by Superior Court ................

Judgment

Order granting Stay -........------c-c-cecceenensncerererenenenenes

Order allowing Certiorari ...........---------------creceeeeeereeeers

* Not in original record.

i

Original Print

939 468

941 470

947 476

949 478

959 488

963 491

975 502

999 v17

7 531

1106 532

1112 537

1127 546

° 547

° 548

List or ImpoRTANT Dates on Wuich Puzapincs Were FIep,

1.

10.

Hearrncs Hevp, anp Orpers ENTERED:

Petition filed May 4, 1963.

Exhibits A & B—Last Will and Testament of

Augustus Octavius Bacon, dated March 28, 1911

and the codicil thereto, dated September 6, 1913.

Answer of defendant, City of Macon, filed May 20,

1963.

Answer of defendants, Guyton G. Abney, J. D.

Crump, T. L. Denmark and Dr. W. G. Lee, as suc-

cessor trustees, ete., filed May 27, 1963.

Motion for summary judgment filed May 27, 1963.

Motion of Rev. E. S. Evans et al. to intervene and

order thereon filed May 27, 1963.

Intervenors’ petition filed June 18, 1963.

Amendment to plaintiff's petition and order allow-

ing, filed January 8, 1964.

Petition of A. O. B. Sparks, Willis B. Sparks, Jr.,

Virginia Lamar Sparks and M. Garten Sparks for

intervention and order allowing, filed January 8,

1964.

Amendment to answer aud cross bill and order

allowing, filed January 8, 1964.

Amendment to answer of City of Macon and order

allowing, filed February 5, 1964.

Exhibit A—Resolution of the Mayor and Council

of the City of Macon adopted February 4, 1964.

a3.

12.

13.

14.

15.

16.

17.

18.

19.

20.

21.

b

Exhibit B—Resignation of the City of Macon

Trustee Under Will of Senator Augustus Octavius

Bacon.

Amendment to intervenors’ petition and order

thereon, filed March 5, 1964. |

Order and decree of March 10, 1964. |

Resignation of the City of Macon as Trustee

Under Will of Senator Augustus Oct acon.

Acceptance of Trust filed March 12, 1964. Se

Argument in Georgia Supreme Court, June 8, 1964.

Opinion of Georgia Supreme Court dated Septem-

ber 28, 1964.

Petition for certiorari filed March 5, 1965.

Certiorari granted April 26, 1965.

Opinion and judgment of Supreme Court of the

United States of January 17, 1966.

Opinion of Georgia Supreme Court on remand dated

March 14, 1966.

Motion for Summary Judgment, and Order filed

November 10, 1966.

Response to Motion for Summary Judgment filed

by Successor Trustees under Will of Augustus Oc-

tavius Bacon filed January 13, 1967.

—

99. Response to Motion for Summary Judgment filed

by Successor Trustees under Will of Augustus Oc-

tavius Bacon, deceased filed January 16, 1967.

Cc

93. Response to Motion for Summary Judgment filed

by Successor Trustees under Will of Augustus Oc-

tavius Bacon filed January 16, 1967.

94. Intervenors’ Supplemental Response to Motion for

Summary Judgment filed by Successor Trustees

under Will of A. O. Bacon filed June 27, 1967.

95. Hearing on Motion for Summary Judgment, June 29,

1967.

96. Amendment to Motion for Summary Judgment and

Order filed June 29, 1967.

97. Order making Attorney General a Party to case

filed July 21, 1967.

98. Intervenors’ Second Supplemental Response to Mo-

tion for Summary Judgment filed by Successor

Trustees under the Will of A: O. Bacon filed Au-

gust 10, 1967.

29. Intervenors’ Third Supplemental Response to Mo-

tion for Summary Judgment filed by Successor

Trustees under the Will of A. O. Bacon filed Au-

gust 17, 1967.

30. Supplement to Motion for Summary Judgment as

Amended filed August 21, 1967.

. Second Supplement to Motion for Summary Judg-

ment as amended filed August 28, 1967.

d

32. Intervenors’ Fourth Supplemental Response to Mo-

tion for Suaimary Judgment filed by Successor

Trustees under Will of A. O. Bacon, filed August 31,

1967.

33. Response by Attorney General to Motion for Sum-

mary Judgment filed November 1, 1967.

34. Order and Decree May 14, 1968, filed May 14, 1968,

35. Copy of Letter of Judge to Attorneys filed May 14,

1968.

36. Notice of Appeal filed June 10, 1968.

37. Enumeration of Errors filed July 8, 1968.

38. Decision of Georgia Supreme Court of December 5

1968.

’

39. Judgment of December 5, 1968.

40. Order granting stay pending certiorari dated De-

cember 13, 1968.

41. Petition for Writ of Certiorari filed March 3, 1969.

. Certiorari granted, May 5, 1969.

—

Expianatory Note

Pages 1 to 94 infra are an exact reproduction of the

printed record in this Court in Evans v. Newton, No. 61,

Oct. Term 1965. These pages were reproduced in this

manner by agreement of counsel. Folio page references

in pages 1 to 94 are to the 1965 original record and differ

slightly from pagination in the present record.

(fol. 1]

IN THE

SUPREME COURT OF THE STATE OF GEORGIA

Docket No. 22534

Rev. E. S. Evans, et al., Intervenors, Plaintiffs in error,

v.

Cuartes E. Newton, et al., Defendants in error.

Bu or Excerrions—Filed May 8, 1964

To the Honorable Chief J ustice and the Honorable Justices

of the Supreme Court of Georgia:

Be It Remembered that on February 5, 1964, there came

on for hearing in Bibb Superior Court before the trial

judge, the Honorable Oscar L. Long, a Motion for Sum-

mary Judgment which had been submitted by the peti-

tioners, defendants-in-error, after which arguments and

authorities were submitted to the Court by parties for

each side. Thereafter, and on the 10th day of March, 1964

the said trial judge entered his order and decree granting

the said motion.

To the said Order of the said trial judge the plaintiffs-

in-error did except, now except and assign the ruling of

the trial judge as reflected in his decree and order as being

contrary to the law and facts in the case. Plaintiffs-in-

error contend that said Order denies equal protection to

the plaintiffe-in-error and others similarly situated as guar-

anteed by the Fourteenth Amendment to the United States

Constitution, for the reason that said Order has the effect

of prohibiting Negroes from the use of the park which is

the subject matter of this litigation. Further, plaintiffs-

in-error contend that said ruling, order and decree also

denies to the plaintiffs-in-error, and others similarly situ-

ated, equal protection of the laws as guaranteed by the

Fourteenth Amendment to the United States Constitution,

in that, this said Court has accepted the resignation of the

City of Macon as Trustees and appointed new Trustees for

the purpose of enforcing the provisions of the Last Will

and Testament of A. O. Bacon which contains a raci

discriminatory testamentary provision and which plaintiffs.

in-error contend was originally commanded by the State,

Error is further assigned to the said Order on the ground,

and the plaintiffs-in-error contend, that Section 108-202,

Georgia Code Annotated, 1933 Edition, has the effect of

requiring that the racially discriminatory provisions of the

testamentary trust which is a part of the subject matter of

this litigation be declared null and void. Said Code Section

reads as follows:

108-202. (4604) Cy pres.—When a valid charitable be-

quest is incapable for some reason of execution in the

exact manner provided by the testator, donor, or

founder, a court of equity will carry it into effect in

such a way as will as nearly as possible effectuate his

intention. (110 Ga. 540, 543 (35 S.E. 639).)

{fol.2] Plaintiffs in error further assign error to the said

trial judge’s said ruling, order and decree on the ground

that the Acts of Georgia of 1905, page 117, commonly re-

ferred to as Georgia Code Section 69-504, hereinafter set

out, is violative of the equal protection clause of the Four-

teenth Amendment for the reason that said provision pre-

scribes racial discrimination and since the racially discrim-

inatory provision in A. O. Bacon’s Last Will and Testa-

ment, the plaintiffs-in-error contend, was dictated by that

unconstitutional statute which received enforcement by said

statute, all in violation of the Fourteenth Amendment to

the United States Constitution, Sec. 1. Said Act reads as

follows:

69-504 (890) Gifts for public parks or pleasure

grounds.—Any person may, by appropriate convey-

ance, devise, give, or grant to any municipal corpora-

tion of this State, in fee simple or in trust, or to other

persons as trustees, lands by said conveyance dedicated

3

in perpetuity to the public use as a park, pleasure

ground, or for other public purpose, and in. said con-

veyance, by appropriate limitations and conditions,

provide that the use of said park, pleasure ground, or

other property so conveyed to said municipality shall

be limited to the white race only, or to white women and

children only, or to the colored race only, or to colored

women and children only, or to any other race, or to

the women and children of any other race only, that

may be designated by said devisor or grantor; and any

person may also, by such conveyance, devise, give, or

grant in perpetuity to such corporations or persons

other property, real or personal, for the development,

improvement, and maintenance of said property. (Acts

1905, p. 117.)

Plaintiffs-in-error specify as material to a clear under-

standing of the errors complained of the following , "ons

of the record, to wit:

1.

2.

3.

Petition, filed May 4, 1963.

Answer of the City of Macon, filed May 20, 1963.

Answer of Guyton G. Abney, J. D. Crump, T. I. Den-

mark and W. G. Lee, as Trustee successors under

the Last Will and Testament of A. O. Bacon.

4. Motion for Summary Judgment dated May 27, 1963.

5. Motion of Rev. E. S. Evans, et al. to intervene, dated

May 29, 1963, with order thereon.

6. Intervenors Petition filed June 18, 1963.

7. Amendment to Petition filed January 8, 1964.

10.

Petition- for intervention and order thereon dated

January 8, 1964.

Amendment to answer and Cross Bill, with order

thereon, filed January 8, 1964.

Amendment to answer of City of Macon, filed Febru-

ary 5, 1964.

a

11. Amendment of Intervenors’ Petition, filed March 5,

1964.

12. Trial Judge’s Order and Decree dated March 10,

1964.

13. Resignation of City of Macon as Trustees.

14. Acceptance of Trust filed March 12, 1964.

(fol. 3] And Now, come Rev. E. S. Evans, et al., within

the time provided by law, and assigning error on all the

rulings complained of as being contrary to law, tender this

their Bill of Exceptions and pray that the same may be

certified to and transmitted to the Supreme Court of

Georgia in order that the alleged errors may be considered

and corrected, all as provided by law.

Donald L. Hollowell, William H. Alexander, Attor-

neys for Plaintiffs-in-error.

85914 Hunter St. N.W., Atlanta, Georgia 30314, Jackson

5-8372.

[{fol. 4]

Jupor’s CertiricatTz To Bri or Excerrions

—April 14, 1965

I do certify that the foregoing Bill of Exceptions was

tendered to me on the 9th day of April, 1964, that the same

is true and specifies all the evidence, and specifies all of

the record material to a clear understanding of the errors

complained of and the Clerk of the Superior Court of Bibb

County is hereby ordered to make out a complete copy of

such parts of the record in said case as are in this Bill of

Exceptions specified, and of the record in said case as are

in this Bill of Exceptions specified, and certify the same as

such and cause the same to be transmitted to the Supreme

Court of Georgia, that the errors alleged to have been com-

mitted may be considered and corrected.

This 14 day of April, 1964.

O. L. Long, Judge, Bibb Superior Court.

5

(fol.5] The within and foregoing Bill of Exceptions ten-

dered this 9 day of April, 1964.

O. L. Long

[fol. 6] Acknowledgments of Service by Attorneys for De-

fendants-in-Error (omitted in printing).

(fol. 8] Clerk’s Certificate to foregoing paper (omitted in

printing).

(fol. 10] [File endorsement omitted]

(fol. 12]

Lx THE Superior Court, Biss County, Gzoraia

Petition—F zp May 4, 1963

Charles E. Newton, Mrs. T. J. Stewart, Frank M. Wil-

lingham, Mrs. Francis K. Hall, George P. Rankin, Jr., Mrs.

Frederick W. Williams and Mrs. Kenneth W. Dunwody, all

of said State and County, in their respective capacities as

members of the Board of Managers of Baconsfield, herein-

after referred to as the “Board”, bring this bill in equity

and name as defendants the following parties:

The City of Macon, in its capacity as Trustee under

Item 1X of the Last Will and Testament of Augustus

Octavius Bacon, deceased :

Guyton G. Abeny, J. D. Crump, T. I. Denmark and

Dr. W. G. Lee, as successor Trustees under the Last

Will and Testament of Augustus Octavius Bacon, De-

ceased, holding assets for the benefit of certain desig-

nated beneficiaries who will take the residuary estate

under the terms of said Will, but subject to the pro-

visions of Item 1X thereof as herein more fully set

forth.

L.

This Honorable Court has jurisdiction of this proceed-

ing in that all of the defendants against whom substantial

relief is prayed herein are residents of Bibb County,

(fol. 13] Georgia; and for the further reason that the trust

assets, as hereinafter described and which form the subject

aan

matter of this bill in equity, are situate in said State and

County.

2.

Your petitioners are the duly qualified and acting mem.

bers of the Board of Managers of Baconsfield, created and

established under the provisions of Item 1X of said Last

Will and Testament of Augustus Ocavius Bacon.

3.

The defendant the City of Macon is a municipality duly

created by Act of the Legislature of the State of Georgia,

and, under said Item 1X of said Will, holds, as Trustee,

the legal title to that tract or parcel of land situate in

Macon, Bibb County, Georgia, known as “Baconsfield”, and

more fully described in said Will. ;

4.

The defendants Guyton G. Abney, J. D. Crump, T. L

Denmark, and Dr. W. G. Lee are successor Trustees under

said Last Will and Testament, and codicil thereto, and are

duly qualified and now acting in such capacities, respec-

tively.

5.

The Last Will and Testament of Augustus Octavius

Bacon, dated the 28th day of March, 1911, and the codicil

thereto, dated the 6th day of September, 1913, have been

duly probated in solemn form in the Court of Ordinary of

{fol. 14] Bibb County, Georgia, a copy thereof being at-

tached hereto as Exhibits “A” and “B” and by reference

made a part hereof.

6.

Under Item 1X of said Will the testator conveyed all his

right, title and interest in and to Baconsfield, the parcel

referred to being fully described in said Item 1X, unto

7

“The Mayor and Council of the City of Macon”, the then

designation of the same municipal corporation which is

now the “City of Macon”.

7.

Your petitioners show that said property was 80 con-

veyed to the defendant the City of Macon “in trust for the

sole, perpetual and unending use, benefit and enjoyment of

the white women, white girls, white boys and white chil-

dren of the City of Macon, to be by them forever used and

enjoyed as a park and pleasure ground”, subject however,

to the restrictions, government, management, rules and

control of the Board of Managers of Baconsfield, your peti-

tioners herein.

8.

Although under the provisions of said Will, the defen-

dant the City of Macon, as Trustee of said properties, is

under @ paramount duty to carry out the provisions of

gaid trust, the Board has complete and unrestricted con-

trol and management of said property, with power to make

all needful regulations for the preservation and improve-

ment thereof, and rules for its use and enjoyment, with

power to exclude at any time any person or persons of

either sex, who may be deemed objectionable, or whose

(fol. 15] conduct or character may by said Board be ad-

judged or considered objectionable, or such as to render

for any reason in the judgment of said Board their pres-

ence in said grounds inconsistent with or prejudicial to the

proper and most successful use and enjoyment of said

property for the purposes contemplated by the testator.

9.

As directed in said Will, the Board has over the years

confined the exclusive use of Baconsfield to those persons

designated in said Will, although under the provisions

thereof it has not objected to the use of said property by

co CN OE IE

—

the white men of the City of Macon and white persons of

other communities.

10.

Your petitoners show, however, that although they have

called the attention of the defendant the City of Macon to

the provisions of Item 1X of said Will and its duties as

Trustee thereunder, said defendant is now failing and re-

fusing to carry out and enforce the provisions of said

Will with respect to the exclusive use of Baconsfield by

the white women of the City of Macon and white boys and

white girls, and white men when so authorized by the

Board, but on the contrary, has recently permitted and is

now permitting the continuous use of said premises by

members of the colored race, in direct contravention of the

terms of the trust created by the testator, and under which

said defendant holds title to Baconsfield, and in complete

disregard and violation of the explicit mandate of the testa-

[fol. 16] tor as set forth in said Will.

11.

Your petitioners are without power to enforce the terms

of said trust with respect to the aforesaid use of Bacons-

field, except to request the defendant the City of Macon

to comply with the terms of the Trust. If, however, a new

Trustee, or new Trustees, are appointed by this Court

then, if necessary, said Trustee or Trustees, by the exer-

cise of a writ of mandamus or otherwise could require the

defendant the City of Macon or other proper law enforce-

ment officers to carry out their duties so that the terms of

the trust, which the City of Macon now is violating in its

capacity as Trustee, may be carried out by the new Trustee

or Trustees.

12.

Your petitioners show that the aforesaid breach of duty

on the part of the defendant the City of Macon, as Trus-

9

tee, constitutes such a violation of trust as to require its

removal as Trustee.

13.

Your petitioners bring this petition for the purpose of

removing the defendant the City of Macon as Trustee of

said properties, and recommend to this Honorable Court,

as a court of equity, that it appoint three (3) freeholders,

residents of the City of Macon, to serve as successor Trus-

tees to defendant the City of Macon and who in their capac-

ity as Trustees, being private citizens, can and will under

the law carry out the testator’s wishes and intent with re-

(fol. 17] spect to the use and enjoyment of Baconsfield,

and the purposes for which said trust was established.

Wherefore, your petitioners pray :

(a) That process do issue in terms of law;

(b) That the defendant the City of Macon be removed

as Trustee under said Will;

(c) That this Court, as a court of equity, enter a decree

appointing one or more freeholders, residents of

the City of Macon, to serve as Trustee or Trustees

under the Last Will and Testament of Augustus

Octavius Bacon, deceased, with power on the part of

the Board to name, subject to the approval of this

Court, from time to time, a successor Trustee or

Trustees upon the death or disqualification of any

such Trustee, or should any such Trustee for any

reason cease to serve in such capacity;

(d) That legal title to Baconsfield, as well as to any

other assets now held by the defendant the City of

Macon, in its capacity a8 such Trustee, be decreed

to be in the Trustee or Trustees 60 appointed by

this Court, and in their respective successor or suc-

cessors, for the uses, purposes and trusts originally

declared by the testator, Augustus Octavius Bacon;

10

(e) That your petitioners have such other and further

relief as the Court may deem fit and proper.

Jones, Sparks, Benton & Cork, Attorneys for Petj.

tioners.

(fol. 18] Duly sworn to by Frank M. Willingham, jurat

omitted in printing.

[fol. 19]

Exuisit “A” To Petition

COPY OF LAST WILL AND TESTAMENT OF

AUGUSTUS OCTAVIUS BACON

I, Augustus Octavius Bacon, of said State and County,

being in perfect health and of sound and disposing mind

and memory, and desiring to make disposition, while so

capacitated, of the property which, under Providence, has

been the fruit solely of my personal industry and toil, do

hereby make, publish and declare this my last Will and

Testament, hereby expressly and entirely revoking and

cancelling all other Wills heretofore made by me.

Item Ist

I commit my soul to God, in the humble hope that in

spite of my many weaknesses, imperfections, faults and

misdeeds, I shall be reuinited in a happy immortality with

my kindred and friends, and particularly with the members

of my immediate family, to whose happiness and welfare

my life has been gladly and unsparingly devoted.

Item 2nd

I direct that my body be buried in Rose Hill Cemetery in

the lot recently purchased by me, and that the bodies of

my two ever-lamented sons, Lamar Bacon, who died on the

21st day of December 1884 and Augustus Octavius Bacon,

Jr., who died on the 27th day of November of the same

year, shall be removed from the lot in which they are now

—

interred, and re-interred in the same lot now owned by me,

and I further direct that my Trustees hereinafter named,

or their successors, shali erect over the graves of myself

and of my two sons, and also over the graves of all other

(fol. 20] members of my family who shall die during the

continuance of the trust herein created, monuments in their

discretion suitable and appropriate therefor.

11

Item 3rd

I direct that all my just debts be paid as early as prac-

ticable after my death.

Item 4th

My household and kitchen furniture in the main dwelling

house, I give and bequeath to my wife, Mrs. Virginia Lamar

Bacon, during the full term of her natural life, to be there-

after disposed of by her will as she may direct.

Item 5th

My household furniture in the little cottage commonly

called “The Hut” which I have personally occupied for

years, as well as all of my books of every kind whereever

located, together with all of my papers, pictures, jewelry,

personal apparel and all other similar personal effects, I

give to my two beloved daughters, Mrs. Mary Louise Bacon

Sparks, and Mrs. Augusta Lamar Bacon Curry, to be di-

vided between them as they shall agree with each other, re-

questing that they give or transmit to their several chil-

dren such of said articles as it may be thought they would

prize and preserve.

Item 6th

All of my estate both real and personal, of every descrip-

tion, and wherever situate, excepting therefrom only so

much thereof as is otherwise disposed of by this Will,

either in the clauses precedent or subsequent hereto, I

(fol. 21] hereby give, bequeath and devise unto my tried

12

and trusted friends Alexander Lawton Miller, Custis Not.

tingham, Richard C. Jordan and Warren Roberts, all of

my said bounty, in trust for the persons : nd purposes here.

inafter named and specified, with the estates and remain.

ders, and with the powers and limitations herein specifically

designated and set forth as follows:

(a) Except as otherwise specified in this Will, all

of the corpus of my said property—including both that

held by me in trust, and that held in fee simple—

whether consisting of the property as it exists at the

time of my death, or of the property into which it may

be subsequently converted, or of property subsequently

acquired for my estate, shall be held by the said Trus-

tees and their successors in trust for the sole use, bene-

fit and enjoyment of my wife, Mrs. Virginia Lamar

Bacon, and of my two daughters, Mrs. Mary Louise

Bacon Sparks and Mrs. Augusta Lamar Bacon Curry,

for and during the term of their natural lives, and

after their several deaths, with the several remainders

as herein specified and provided, and to the uses, bene-

fit and enjoyment of the beneficiaries specified there-

under; and to fully effect the same, the said Trustees

shall annually, so long as the said Mrs. Bacon, Mrs.

Sparks and Mrs. Curry shall all remain in life, pay to

each of them one-third of the net annual revenue de-

rived from said property after the payment of all

(fol. 22] proper and legitimate expenses incident there-

to.

(b) Upon the death of Mrs. Virginia Lamar Bacon,

I direct that all of the property specified and embraced

within this Item 6th of my Will, including the one-

third theretofore held in trust for Mrs. Virginia Lamar

Bacon, shall be by the said Trustees divided inte two

equal parts, one of which parts shall be held by said

Trustees in trust for the sole use, benefit and enjoy-

ment of my daughter, Mrs. Mary Louise Bacon Sparks,

during the full term of her natural life with the re-

13

mainders in the same as hereinafter specified, and the

net revenues from the same shall during her life be

annually paid to her; and the other of said equal parts

shall be held by said Trustees in trust for the sole use,

benefit and enjoyment of my daughter, Augusta Lamar

Bacon Curry during the full term of her natural life,

with the remainders in the same as hereinafter speci-

fied, and the net revenue from the same, shall during

her life, be annually paid to her.

(c) Upon the death of my daughter Mary Louise

Bacon Sparks, I direct that the portion of the property

embraced in this Item 6th of my Will and held in trust

for her during the term of her natural life as afore-

said shall thereafter be held by said Trustees and their

successors of the sole use, benefit and enjoyment of the

(fol. 23] children now in life of my said daughter, Mary

Louise Bacon Sparks. During the full term of the life

of Willis B. Sparks, Senior, who married my said

daughter, Mary Louise, with remainder after his death

to the children of the said children now in life of my

said daughter Mary Louise, to-wit: the children of

Augustus Octavius Bacon Sparks, Willis B. Sparks,

Junior; Virginia Lamar Sparks and of Garton Sparks.

But if at the time of the death of my daughter Mary

Louise, and any one or more of the said children

of my said daughter Mary Louise shall then be in

life, the proportionate interest of each of said children

of my daughter Mary Louise shall then vest in said

child in fee simple, and thereupon the said trust to that

extent shall cease and terminate. If during the life of

the said Willis B. Sparks, Senior, and after the death

of my daughter, Mary Louise, any one of her said chil-

dren hereinbefore named, shall die leaving neither hus-

band, nor wife, nor child, the interest of said child so

dying shall thereupon descend to, and enure in equal

parts to the benefit of the survivors of the said chil-

dren, and shall thereafter during the continuance of

this trust, be held by the said Trustees for the use,

14

benefit and enjoyment of the survivors of the Said

children. The intent and purpose of this provision of

my Will is that in no event and under no circumstanees

shall the trust cease and the title in and to said prop-

({fol. 24] erty, or any part thereof, vest in fee simple,

in either of my said daughter Mary Louise, or in any

of her descendants, during the term of the natural

life of the said Willis B. Sparks, Senior; and further

that the remainders hereinbefore specified shall be

preserved and take effect after the death of the said

Willis B. Sparks, Senior.

(d) Upon the death of my daughter, Augusta Lamar

Bacon Curry, I direct that the portion of the property

embraced in this Item, and held in trust for her dur.

ing the term of her natural life as aforesaid, shall

thereafter be held by said trustees and their successo

for the sole use, benefit and enjoyment of the children

now in life of my said daughter, Augusta Lamar,

to-wit: Shirley Holeomb Curry, Marie Louise Curry

and Manly Lamar Curry, until her youngest child,

the said Manly Lamar Bacon Curry, shall reach the

age of twenty-one years, when the proportionate part

of said property, shall vest in each of said children,

and the trust, to the extent thereof in said property,

shall thereupon cease and determine. But if either of

the said named children or my said daughter, Augusta

Lamar, shall, without leaving husband, or wife or child,

die before the said Manly Lamar Bacon Curry shall

reach, or would, if in life, reach the age of twenty-one

years, the portion of the said child so dying shall

thereafter be held in trust for the use, benefit and en-

joyment of the survivors of the said named children;

({fol. 25] and if either of the said named children of

my said daughter, Augusta Lamar, shall, before the

said Manly Lamar reaches, or would, if in life, reach

the age of twenty-one years, die leaving a child or chil-

dren in life, the portion of the child so dying shall be

—

held in trust for his or her surviving child or children

until they severally arrive at the age of twenty-one

years.

15

Item 7th

To my said Trustees hereinbefore named, and to their

successors, I give full power and authority to sell so much

of the property of my estate as is embraced in the foregoing

sixth Item of this Will, both real and personal or any part

thereof in their discretion, and to make conveyances there-

of, with full and perfect title free from said trusts, limita-

tions and remainders, to the purchasers of the same with-

out any authority asked from or granted by any court, or

officer or any person whomsoever; said sales to be at

either public or private sale, and no such terms as they in

their discretion shall determine, and either with or without

public or other advertisement of the same. But the net

proceeds of all such sales, except as otherwise provided

in this Will, shall be by the said Trustees reinvested in

other real estate in the State of Georgia; which said real

estate, when thus purchased for reinvestment, shall in each

and every particular be held in the name of said Trustees

or their successors subject to the same trusts and uses,

and limited to the same estates and remainders as are

specified in the foregoing Sixth Item of this Will; and the

[fol. 26] title deeds taken to said real estate shall, by refer-

ence to this Will express that the same is conveyed for said

trusts and uses, and with the said estates and remainders

as are herein specified. The books of said Trustees shall

contain an accurate and complete statement of all real

estate and other property sold and purchased on account of

said trust estate, and also accurate accounts of all monies

received and disbursed on account of said estate. I urge

the said Trustees in this connection not to sell the real

property of my estate hurriedly, but only when the same

can be done to the best advantage, as the said property

can in large part be used in such manner as to provide

revenue, and the said property will in a reasonable short

16

time be very valuable for sale for residence purposes, The

power to sell I intend to embrace in all its features ang

requirements and exemptions, the power to lease or rent.

Item 8th

During the lives of Mrs. Virginia L. Bacon and of my

two daughters, Mary Louise Bacon Sparks and Augusta

Lamar Bacon Curry, it is my will that they shall each

receive annually through said Trustees, from my estate at

least the full sum of $1,200.00. If the one third of the

net annual revenues derived from my estate does not in

any year furnish an amount sufficient to pay the full sum of

$1,200.00 to each of them, I direct that the defiviency be

made up by taking from the amount received from the

sales of property embraced in Item Sixth of this Will, as

much as will be necessary to give to each of the three, the

said full sum of $1,200.00.

(fol. 27] Upon the death of their mother, Mrs. Virginia

Lamar Bacon, it is my will that each of my said daughters

Mary Louise and Augusta Lamar, shall receive annually,

through said Trustees, from my estate at least the sum of

$1,800.00. If the property set apart for the use and enjoy-

ment of each of my said daughters upon the death of their

mother, to be held as hereinbefore provided in trust for

each of them during life, shall not in any year furnish an

amount of net revenue sufficient to pay to each or either of

them the full sum of $1,800.00, I direct that the deficiency

be made up by sales of property so set apart; so that any

deficiency in the annual amount due to my daughter Mary

Louise shall be made up by sales of property set apart for

her use; and in like manner any deficiency in the annual

amount due to my daughter Augusta Lamar shall be made

up by sales of property set apart for her use; and the

property so sold shall, as hereinbefore provided, be thereby

freed from said trusts and the estates, limitations and re-

mainders thereunder. The purpose of this provision is not

to limit my wife and daughters to the amount named, but

to ensure to them at least said amounts in case the net

revenues shall be insufficient for that purpose.

_—

17

Item 9th

I direct that there by said Trustees laid off and accurately

defined and permanently marked by enduring monuments,

the following described part of my farm which is situated

in part within and part without the corporate limits of the

City of Macon, and known as “Baconfield,” the same to be

set apart and dedicated to the purposes, uses and enjoy-

(fol. 28] men.» 7s hereinafter more fully set forth and de-

tailed. The said part of the property thus set apart is

hounded as follows: there is on the Southeastern part of

my said farm @ four acre rectangular tract which formerly

belonged to James Pepper, and which is commonly known

as the “Pepper Place” the same having been purchased and

added to my farm. For this description, beginning at the

South-eastern corner of said rectangular tract, the boundary

line of the property runs in a Northerly direction along the

Eastern boundary line of said Pepper Place and thereafter

in a direct prolongation of the same to a point nine hun-

dred and sixty-three feet and five-tenths from the said start-

ing point, thence in a slightly northwestern direction sixty-

three feet and five-tenths, thence in a northerly direction

three hundred and thirty-two feet across Boulevard Bacon-

field to a point on the Western side of said Boulevard,

thence three hundred and sixteen feet along the western

border of said Boulevard to a point on the same immedi-

ately opposite the junction of said Boulevard and Gray

Street, thence, in a direction a little West of North, twenty-

four hundred and eighty feet to an elm tree, thence at right

angles sixteen hungred and sixty-two feet to the bank of

the Oemulgee River, thence in a Southeasterly direction

along the bank of said river thirty-three hundred and

ninety seven feet, thence in a direct line to the Southwest

corner of the said Pepper lot, thence four hundred and

thirty-seven feet along the Southern boundary line of said

Pepper lot to the original starting point; the said metes

and bounds of the said tract of land being correctly platted

and defined on a map of the same hereto attached, made

[fol. 29] by H. D. Cutter and upon which for the purpose of

ae

identification, | have endorsed my original signature, The

larger part of the property thus described and bounded ig

a portion of a trust estate originating with me and created

solely by me for the benefit of my wife and children dur;

my life and for their benefit and use after my death in

such estates and with such remainders as should be speci-

fied and directed by me in my last Will and Testament. For

the purpose of carrying out fully the purpose and intent

of the trust thus created, I hereby give, bequeath and de-

vise the said property consisting of the tract of land herein-

before described and bounded and platted on said map unto

the said Trustees, viz. Alexander Lawton Miller, Custis

Nottingham, Richard C. Jordan and Warren Roberts, in

trust for the sole joint use, benefit and enjoyment of my

wife, Virginia Lamar Bacon, and of my two daughters,

Mary Louise Bacon Sparks and Augusta Lamar Bacon

Curry, during the term of their natural lives, as follows:

So long as they shall all live they shall be entitled to the

equal enjoyment and use of the same including all revenues

and profits in any way derived therefrom. When Mrs. Vir-

ginia Lamar Bacon shall die, the use, benefit and enjoyment

of the entire property herein described and bounded shall

belong to my two said daughters equally, including all

revenues and profits in any way derived from the same,

during the full term of their natural lives. Upon the death

of either of my said daughters, her interest in said prop-

erty shall be enjoyed by her children and the survivors of

them until the death of my last surviving daughter. Upon

the death of my said wife and of each of my sajd daughters,

(fol. 30) and of the last survivors of them, the trust created

in this property by this said Ninth Item of this Will in

the said tract of land thus defened, bounded and platted

shall cease, and thereafter shall close all interest and right

of enjoyment of any person or persons whomsoever in

said property except as héreinafter specified and provided,

to-wit: When my wife, Virginia Lamar Bacon and my two

daughters, Mary Louise Bacon Sparks and Augusta Lamar

Bacon Curry, shall all have departed this life, and immedi-

18

19

ately upon the death of the last survivor of them, it is my

will that all right, title and interest in and to said property

hereinbefore described and bounded, both legal and equi-

table, including all remainders and reversions and every

estate in the same of whatsoever kind, shall thereupon vest

in and belong to the Mayor and Council of the City of

Macon, and to their successors forever, in trust for the

sole, perpetual and unending, use, benefit and enjoyment

of the white women, white girls, white boys and white chil-

dren of the City of Macon to be by them forever used and

enjoyed as a park and pleasure ground, subject to the

restrictions, government, management, rules and control of

the Board of Managers hereinafter provided for: the said

property under no circumstances, or by any authority what-

soever, to be sold or alienated or disposed of, or at any

time for any reason devoted to any other purpose or use

excepting so far as herein specifically authorized. For the

control, management, preservation and improvement of

said property there shall be a Board of Managers consist-

ing of seven persons of whom not less than four shall be

white women, and all seven of whom shall be white persons.

[fol. 31] The Members of this Board shall first be selected

and appointed by the Mayor and Council of the City of

Macon, or by their successors in said trust; and all vacan-

cies in said Board shall be filled by appointments made by

the Mayor and Council of the City of Macon, or their suc-

cessors, upon nomination made by the said Board of Man-

agers and approved by the said Mayor and Council of the

City of Macon or their successors. If practicable, I desire

that there shall be as a member of said Board of Managers

at least one male or female descendant of my own blood,

not only in the Board as first constituted, but at all times

thereafter. The said Board of Managers shall at all times

have complete and unrestricted control and management

of the said property with power to make all needful regu-

lations for the preservation and improvement of the same,

and rules for the use and enjoyment thereof, with power

to exclude at any time any person or persons of either sex,

- eA RE NNT A AY

20

who may be deemed objectionable, or whose conduct or

character may by said Board be adjudged or considered

objectionable, or such as to render for any reason in the

judgment of said Board their presence in said grounds in.

consisting with or prejudicial to the proper and most gue.

cessful use and enjoyment of the same for the Purposes

herein contemplated. The Board of Managers shall have

the power to admit to the use of the property the white

men of the City of Macon, and white persons of other com.

munities, with the right reserved to at any time withhold

or withdraw such privilege in their discretion, To enable

the Board of Managers to have a fund for the payment of

necessary expenses connected with the management, im.

provement and preservation of said property, including

when possible drives and walks, casinos and parlors for

(fol. 32] women, play grounds for girls and boys and pleas.

ure devices and conveniences and grounds for chi

flower yards and other vrnamental arrangements, I direct

that said Board may use for purposes of income in any

manner they may deem best that portion of the property

that lies Easterly of the road known as Boulevard Bacons-

field, beginning at the north Macon bridge and including

the “Pepper Place,” also all of said property lying on the

river which is properly classed as low lands, or river bot-

tom; but in no event and under no circumstances shall any

part of the property herein conveyed and bounded and

platted be ever sold or otherwise alienated or practically

disposed of by any person or authority whatsoever, and

excepting the portions of the property which may be used

for purposes of revenue as aforesaid all the remainder of

said property shall forever and in perpetuity be held for

the sole uses, benefits and enjoyments as herein directed

and specified. If it should be held that said property is sub-

ject to taxation when devoted to such uses as a park or

pleasure ground, I request that proper steps be taken to

secure from the State of Georgia a perpetual release from

all liability to taxation.

21

I take occasion to say that in limiting the use and en-

joyment of this property perpetually to white people, I am

not influenced by any unkindness of feeling or want of con-

sideration for the Negroes, or colored people. On the con-

trary I have for them the kindest feeling, and for many of

them esteem and regard, while for some of them I have

sincere personal affection.

I am, however, without hesitation in the opinion that

in their social relations the two races (white and negro)

(fol. 33] should be forever separate and that they should

not have pleasure or recreation grounds to be used or en-

joyed, together and in common. I am moved to make this

bequest of said property for the use, benefit and enjoyment

of the white persons herein specified, by my gratitude to

and love of the people of the City of Macon from whom

through a long life time I have received so much of per-

sonal kindness and so much of public honor; and especially

as a memorial to my ever lamented and only sons, Lamar

Bacon who died on the 21st day of December 1884 and

Augustus Octavius Bacon, Jr. who died on the 27th day of

the same year. And I conjure all of my descendants to the

remotest generation as they shall honor my memory and

respect my wishes to see to it that this property is cared

for, protected and preserved forever for the uses and pur-

poses herein indicated. I direct that said property during

the lives of my said wife and my two said daughters shall

continue to be known and designated as “Baconsfield” and

that after their death, it shall be forever and perpetually

known as “Baconsfield,” and shall be so designated in all

matters, documents and papers relating thereto.

While I make no restrictions, I request that the Managers

will preserve on the property my present house residence,

and the smaller house nearby which I have personally oc-

cupied for so many years and which I have called “The Hut”

the said houses to be used to the best advantage, and in such

localities on the property as may be most desirable, for the

comfort, convenience and pleasure of the white women,

girls, boys and children herein designated: and I trust that

the managers of said property may find it to the best inter-

——y

(fol. 34] est of those who are to enjoy this property that

there shall be perpetually preserved the present woods and

trees upon the same. And I specifically direct that during

the said trust estate in said property for the uses and bene.

fit of my wife Virginia Lamar Bacon and of my two daugh.

ters Mary Louise Bacon Sparks, and Augusta Lamar Bacon

Curry, neither the said residence house nor the said smaller

house known as “The Hut” shall be removed or destroyed

or materially altered by addition or otherwise, but that

the same during the entire terms of said trust estate for life,

be carefully preserved in their present condition; and fur.

ther that during the terms of said trust estates and dur;

the lives of my said wife and my two said daughters, the

woods and trees on said property be carefully preserved,

and that no one of them be cut down or destroyed for any

purpose whatsoever; and I further specifically provide

and direct that the said trustees hereinbefore named and

their successors shall not have power or author‘ty to sell or

otherwise alienate or dispose of the tract of land thus de.

scribed, bounded and platted or any part thereof during the

continuance of said trust or truste or at any other time,

under any circumstances and upou any account whatsoever,

and all such power to make such sale or alienation is hereby

expressly denied to them, and to all others.

Item 10th

To make still further provision for the preservation, man-

agement and improvement of the property set apart in the

foregoing 9th Item of this Will as a park and pleasure

grounds as aforesaid, I will and bequeath to the Mayor and

Council of the City of Macon, and to their successors, ten

(fol. 35] bonds of the Macon Railway and Light Co., each

of said ten bonds being for $1000.00 and in the aggregate

being for $10,000.00 and bearing interest at the rate of

five per cent per annum, and at present in the custody of

The Riggs National Bank in Washington, D. C., the said

bonds and all monies or things of value resulting and de-

rived therefrom to be held by the said Mayor and Council

22

23

of the City of Macon and their successors for the following

trusts and uses, to-wit: So long as the property known

and to be known perpetually as “Baconsfield,” specified,

hounded and described in the foregoing 9th Item of this

Will, shall continue to be held in trust by the Trustees

named in the said foregoing 9th Item and their successors

for the use and benefit of my said wife and my two said

daughters, or either of them, until the said property shall

yest in the Mayor and Council of the City of Macon to be

held in trust for the purposes specified and for the uses

directed in the said 9th Item. The said Mayor and Council

of the City of Macon shall as said Trustees collect the semi-

annual interest which shall be paid on said bonds, and as

promptly as practicable invest the same in interest bearing

bonds to be added to and included in said trust fund; and

the interest received on the additional bonds thus purchased,

and from all other bonds additional thereto resulting from

and accruing to said fund, shall in like manner be reinvest-

ing in interest bearing bonds, so that all income from said

fund or in any manner accruing to said fund shall as far

as practicable be semiannually compounded and added to

the principal of the original fund. When the said Trustees

named in the said 9th Item and their successors shall cease

{fol. 36] to hold said property in trust for my said wife

and my said daughters, as provided in the said 9th Item,

and when as therein provided the Mayor and Council of the

City of Macon shall as Trustees be vested with said prop-

erty and the title to the same for the uses therein set forth,

they shall as may be required for the preservation, main-

tenance and improvement of said park and pleasure ground,

pay over to the Board of Managers hereinbefore provided

for, the income subsequently received from said trust fund

constituted of and resulting from the said bonds; and all

income derived from said property, and from said bonds,

and the proceeds thereof, when not required for the needs of

said park and pleasure ground, be added to the said princi-

pal fund, to the end that from increased income it may be in

greater and ever increasong degree beautiful and developed

and equipped for the benefit and enjoyment of those for

24

whose pleasure and happiness it is designated. If for any

reason it should be held that the Mayor and Council of the

City of Macon have not the legal power under the charter

of the City to hold said fund in trust for the purposes

specified, then unless said power is obtained through ap.

propriate legislation, 1 direct that the powers herein ex-

pressed be conferred upon a trustee to be selected by the

Mayor and Council of the City of Macon, with such safe.

guards and restrictions as may be prescribed by them for

the perpetual safekeeping and management of the fund.

And I give a similar <lirection if for any reason it should

be held that the Mayor and Council of the City of Macon

have not the legal power under their charter to hold in trust

for the purposes specified the property designated for said

(fol. 37] park and pleasure ground, unless said required

power is conferred by appropriate legislation. Should the

Mayor and Council of the City of Macon at any time con-

sent to do so, then I direct that they be authorized to re-

ceive the fund constituted of said bonds and all additions

thereto and the proceeds thereof, and cover the same into

the treasury of the City, in consideration of the perpetual

obligation of the City to be evidenced by its bond or

otherwise, to provide and pay over annually to the said

Board of Managers an amount equal to five per centum

interest upon the sum thus covered into the treasury, to

be devoted by said Board to the uses hereinbefore specified.

In making this bequest as expressed in this and the pre-

ceding item of my Will, I have been mindful to preserve the

full use and enjoyment of the real estate to my wife and

daughters during their natural lives, and also of the fact

that the entire bequest in value represents a very much

smaller proportion of my estate than would have been the

share in it of my two sons had they lived. As there will

be no one of my descendants who now bears my name

either by right or birth, or through voluntary choice, an ad-

ditional reason is furnished why I should deem it proper

that in devoting this property to the uses specified, I should

at the same time link their memories with the pleasures and

enjoyments of the women and children and girls and boys

_—

25

of their own race in the community of which they once

formed a happy part.

Item 11th

For many years I have had someone employed to care for

the cemetery lot at Midway Church in Liberty County in

fol. 38] which my father, Rev. Augustus Octavius Bacon

and my mother Mary Louise Bacon and my only brother,

Samuel Jones Bacor, are buried, and also my uncle, Dr.

Albert Summer Bacon, the small sum of $10.00 per year

having been found sufficient for that purpose. I direct that

tie payment of said amount, or more if required, be made

annually for said purpose, by the said trustees of my

estate, and that the same be made a perpetual charge upon

the property of my estate when distributed to my devisees

and legatees; and I conjure my descendants to the remotest

generation to s0 provide that the said cemetery lot shall

always be properly preserved and cared for. I make a like

bequest and request for the proper care of the burial lot of

my wife’s family in Rose Hill Cemetery in Macon, and for

the proper care of my own cemetery lot in Macon.

Item 12th

The provision herein made for my wife, Mrs. Virginia

Lamar Bacon, is in all its parts, both as to realty and per-

sonalty through said Trustees, intended to be in lieu of

dower and first year’s support. If she should refuse to

accept the same and elect to take her dower, then it is my

will that the remainder interest in the real estate set apart

as her dower shall vest in my said Trustees for the trusts

and estates and uses as hereinbefore provided should obtain

following her death.

Item 13th

I direct that said Trustees shall be authorized to use

a portion of the money realized from the sale of lots for

residences or other purposes, in the improvement of other

(fol. 39] portions of the property with the view of secur-

26

ing increased revenue therefrom for the enjoyment of my

wife and daughters and their children; but I desire that this

power shall be sparingly exercised and only in case where

the prospects of such increased revenue is reasonable cer.

tain.

Item 14th

In case of the occurrence of a vacancy among the said

Trustees herein named and appointed in the Sixth Item of

this Will, I direct that it be filled by a suitable person

selected by the remaining Trustees, such selection and the

acceptance of the same to be evidenced in writing, and to

be recorded upon the Minutes of the Superior Court of Bibb

County upon petition by said remaining Trustees, and

order of the Court granting authority to do so.

The said Trustees and their successors shall not be re-

quired to give any bond for the proper and faithful perform-

ance of their duties under said trust, or for any other pur-

pose whatsoever, nor shall they be required to make any

returns of property or of money received and disbursed,

or of any other actings and doings under said trust to any

court or other authority, but shall only be required to keep

accurate books of accounts of property and of receipts and

disbursements which shall be open to the inspection of the

beneficiaries under this Will. They shall also make to the

Mayor and Council of the City of Macon annual reports,

relative to the conditions and preservation of the prop-

erty herein designated as “Baconsfield” and embraced with-

in the provisions of the Ninth Item of this Will, and par-

ticularly as to the preservation of the buildings and trees

(fol. 40] upon the same. I have confidence that my said

Trustees will »xecute this trust as economically as prac-

ticable, and I recognize and desire that such one of this

number as may be charged more immediately with the

work shall, through commissions or sales or otherwise,

receive a fair compensation for his time and labor ex-

pended thereon.

27

Item 15th

I am firmly convinced both from observation and per-

sonal experience that it is unwise for personal relatives

to have business transactions and business relations with

each other, and I specifically direct that, except as provided

in the ninth Item of this Will in the case of the said Board

of Managers, no blood relation of myself, and more par-

ticularly no one related to me by marriage, and most par-

ticularly no present or any future husband of said daugters

or of either of my granddaughters, either during the lives

of my said daughters or granddaughters, or at any time

thereafter, shall ever be either actually, nominally or prac-

tically or practically an executor, administrator or trustee

for the management or control of my estate, or of any part

of the property thereof, or hold any position, authority

or employment as @ manager, representative, or agent in

the control or management of the property or any part

thereof; or of any business or interest eonnected with the

same or related thereto.

Item 16th

I hereby nominate, constitute and appoint my said long

tried friends, Alexander Lawton Miller, Custis Nottingham,

Richard C. Jordan and Warren Roberts, all of said State

and County, Executors of this my Last Will and Testament.

(fol. 41] They shall not be required to make any inventory

or appraisement of the property of my estate, nor to have

the same made by others, excepting only such as shall be

made voluntarily by them to be entered on their private

records for the information of themselves and of the bene-

ficiaries under this Will. Nor shall the said Executors be

required any bond, or to make any return of or concerning

the property of my said estate, or the disposition or man-

agement of the same or of its revenues, or any other returns

of any kind whatsoever to any court, officer or authority

whatsoever.

In witness whereof I, the said Augustus Octavius Bacon,

at Macon Georgia on this the twenty eighth day of March

28

in the year Nineteen hundred and eleven, to the foregoing

thirty two pages written with my own hand, and containing

my last Will and Testament, do hereby set my hand and

affix my seal in the presence of the attesting witnesses,

hereunto subscribing as such by my request.

/s/ Aucustus Octavius Bacon (Seal)

Signed, Sealed, Declared and Published by Augustus

Octavius Bacon as his last Will and Testament in the

presence of the undersigned who, each of us, at his request,

subscribed our names as witnesses thereto in the presence

of said Testator and in the presence of each other—this the

twenty eighth day of March, in the year Nineteen hundred

and eleven; the words “including both that held by me in

trust, and that held in fee simple,” when they occur on the

fourth page, and the word “authority,” when it occurs on

the tenth page, having been in each instance interlined be-

fore signing.

(fol. 42]

/3/ J. M. Hancock

/8/ Swyey W. Hatcuer

/8/ Water Derore

(fol. 43]

Exuisit “B” to Petrrion

CODICIL

City of Washington

District of Columbia

I, Augustus Octavius Bacon, of the State of Georgia and

County of Bibb and now temporarily sojourning at Wash-

ington in the District of Columbia, being of sound and dis-

posing mind and Memory, do hereby make, declare and

publish this first codicil to my last Will and Testament

heretofore made, published, and declared by me on the 28th

day of March 1911.

29

Item Ist

[ revoke so much of the second item of my said Will as

directs that my body shall be interred in the cemetery lot

recently purchased by me, and also that part in said item

which directs that the bodies of my two deceased sons shall

be disinterred and reinterred in said lot.

Item 2nd

| revoke so much of my said Will as nominates and ap-

points Warren Roberts as a trustee under the same, and

also so much thereof as nominates and appoints the said

Warren Roberts as Executor of my said Will, and in his

stead I hereby nominate and appoint my tried and trusted

friend Minter Wimberly of said County of Bibb, both as

Trustee under my said Will and as executor thereof; hereby

expressly conferring upon the said Minter Wimberly, both

as said trustee and as said executor, all the powers, privi-

(fol. 44] leges, rights, immunities and exemptions hereto-

fore conferred in said Will upon the said Warren Roberts,

both as Trustee and as Executor as aforesaid.

Item 3rd

My beloved daughter, Augusta Lamar Bacon Curry,

having died, it is my Will and I hereby direct that her

children, Shirley Holeomb Curry, Marie Louise Lamar

Curry and Manly Lamar Bacon Curry, shall in the disposi-

tion of my property, stand in the place of their Mother, and

that the interest in my estate which she would have taken

under my said Will shall, upon my death, enure to them

and be held in trust for them and each of them in the same

manner and to the same extent and subject to the same

trusts, limitations, conditions and remainders as they

would have taken under the provisions of my said Will had

my daughter Augusta survived me and had they upon her

subsequent death taken the same remainder interests pre-

scribed for them in my said Will, and my said trustees

shall hold said interests for them with the same trusts,

limitations and conditions as are prescribed for them in

30

my said Will; but subject nevertheless to the following ad-

ditional provisions, limitations and remainders, to-wit:

The interest as aforesaid of each of said children shall

«nure to and be enjoyed by each for and during the period

of his or her natural life respectively; and if either of said

children of my daughter Augusta shall die leaving no child

or children in life, the interest of said child so dying shall

(fol. 45] enure to and be injoyed by the surviving child or

children of my daughter Augusta in the estates and with the

same remainders as are herein prescribed for the original

interest so received by each of them respectively. In making

provisions for the children of my daughter Augusta I am

not unmindful of the fact that part of the property thus

generally devised is held by me in trust for my wife and

children; but as the property thus held by me in trust is

less than one-half of the aggregate of the property held by

me both in trust and in my own right, the division herein

directed thus generally, can be made without violation the

terms of said trust. To prevent possibility of misconstruc.

tion I hereby prescribe and declare that all interest of the

said children of my said daughter Augusta in the property

specified in Item 9 of my said Will and in the rents, issues

and profits thereof, shall cease, end and determine upon the

death of my wife Virginia Lamar Bacon and of my daughter

Mary Louise Bacon Sparks.

Item 4th

I direct that the said Custis Nottingham shall with his

family continue to occupy free of rent the house now oc.

cupied by him at Baconsfield until the full experation and

execution of the trusts for the preservation and execution of

which I have in my said Will and in this Codicil appointed

the said Alexander Lawton Miller, Custis Nottingham, R. C.

Jordan and Minter Wimberly as Trustees as aforesaid ; this

provision being made in consideration of the personal in-

terest in and care for said trust property and said cestui que

trusts by said Nottingham.

31

[fol. 46] Item 5th

Except as herein modified and changed by this first

Codicil, 1 do again hereby make, declare and publish my

said last Wil! and Test.ment heretofore made, declared

and published by me on the 28th day of March, 1911.

In witness whereof I, the said Augustus Octavius Bacon,

at Washington in the District of Columbia on this the sixth

day of September (1913) Nineteen hundred and thirteen

to the foregoing four and one half pages written with my

own hand and containing this first Codicil to my said last

Will and Testament, do hereunto set my hand and affix

my seal in the presence of the attesting witnesses hereunto

subscribing as such at my request.

/s/ Aveustus Octavius Bacon (Seal)

Signed, sealed, declared and published by Augustus

Octavius Bacon as the first Codicil to his last Will and

Testament in the presence of the undersigned, who each of

us, at his request, have subscribed our names as wit-

nesses thereto in the presence of the said Testator and in

the presence of each other, this the Sixth day of September

(1913) Nineteen hundred and thirteen.

/s/ Jno. T. Borreumet

/s/ James L. Fort

/s/ Earut B. Wiiuiams

[File endorsement omitted]

32

[fol. 47]

In THE Surerion Court, Biss County, Georcu

Bill in Equity

No. 25864

{Title omitted]

Answer oF Derenpant, City or Macon—

Filed May 20, 1963

Comes now the City of Macon, one of the defendants

named in this action and files this answer to plaintiffs’

petition, and shows:

1.

This defendant admits paragraphs one and two of plain-

tiff’s petition.

2.

This defendant denies paragraph three of the petition,

as pleaded, but admits that the defendant is a municipality

duly created by the Legislature of the State of Georgia and

that this defendant holds the legal and equitable title to

the property in question, subject to the provisions of Item

1X of the last will and testament of Augustus Octavius

Bacon.

3.

On information and belief, this defendant admits para-

graph four of the petition.

4.

This defendant admits paragraphs five, six and seven of

the petition.

5.

This defendant denies paragraph eight of the petition as

pleaded. The said will attached to the petition speaks for

33

itself and is subject to interpretation and construction by

this court.

{fol 48] 6.

This defendant can neither admit nor deny paragraph

nine of the petition, but, on information and belief, admits

that subject property has been used exclusively by white

persons.

7.

This defendant denies paragraph ten as pleaded. How-

ever, this defendant admits that large numbers of Negro

citizens have gone upon the subject property and used the

same for various recreational activities during the past

few weeks, and the City of Macon further admits that the

use of the subject property by said members of the Negro

race is not in conformity with the expressed intentions of

said testator as contained in Item 1X of the aforesaid will.

Further, the City of Macon alleges that it has no authority

to enforce racially discriminatory restrictions with regard

to property held in fee simple or as trustee for a private or

public trust and, as a matter of law, is prohibited from en-

forcing such racially discriminatory restrictions.

8.

This defendant admits the first sentence of paragraph

eleven, but denies the remaining portion of said paragraph

as pleaded.

9.

Defendant denies paragraph twelve of plaintiffs’ peti-

tion.

10.

This defendant neither admits nor denies paragraph thir-

teen of plaintiffs’ petition since no answer is required.

(fol.49] For further plea and answer this defendant

shows:

34

11.

The City of Macon cannot legally enforce racial ge

gation of the property known as Baconsfield and, there.

fore, is unable to comply with the specific intention of

the said testator with regard to maintaining the property

for the exclusive use, benefit and enjoyment of the white

women, white girls, white boys and white children of the

City of Macon; neither can the City convey said property

to private individuals, either for or without consideration,

in order to carry out the said specific intention of the said

testator.

WHEREFORE:

This defendant prays that this honorable court construe

the last will and testament of the late Augustus Octavius

Bacon and enter a decree setting forth the duties and obliga-

tions of the City of Macon in the premises and give such

directions as the court deems proper, just and equitable,

Buckner F. Melton, 305 Persons Building, Macon,

Georgia, Attorney for Defendant, City of Macon,

Duly sworn to by Edgar H. Wilson, jurat omitted in print.

ing.

(fol. 50] Certificate of service (omitted in printing).

[File endorsement omitted]

(fol. 51)

In THE Superior Court, Biss County, Grorcu

Bill in Equity

No. 25864

[Title omitted]

Answer or Derenpants Guyton G. Asney, J. D. Crump,

T. I. Denmark, anv Dr. W. G. Lez, as Successor Trus-

TEES UnDeR THE Last WILL anv TESTAMENT OF AUGUSTUS

Octavius Bacon, Deceasep—Filed May 27, 1963

Come now Guyton G. Abney, J. D. Crump, T. I. Denmark

and Dr. W. G. Lee, as successor trustees under the Last

Will and Testament of Augustus Octavius Bacon, deceased,

35

named among others as defendants in the above cap-

tioned matter, and answering said petition, respectfully

show :

1.

These respondents admit the allegations of Paragraphs 1,

9, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13 of said petition.

2.

Further answering said petition, these respondents, with-

out waiving any of the rights, title or interest vested in

them under said Last Will and Testament, join in each and

every prayer of said petition and, without limiting the gen-

erality of the foregoing, pray that the City of Macon be

removed as trustee of the charitable trust created in said

Last Will and Testament and Codicil of Augustus Octavius

Bacon, deceased.

Jones, Sparks, Benton & Cork, Attorneys for respon-

dents Guyton G. Abney, J. D. Crump, T. I. Den-

(fol. 52] mark and Dr. W. G. Lee, As successor

Trustees under the Last Will and Testament of

Augustus Octavius Bacon, deceased.

Duly sworn to by Guyton G. Abney, jurat omitted in print-

ing.

(fol. 53] Certificate of service (omitted in printing).

[File endorsement omitted]

[fol. 54]

Ix THE Superior Court, Briss County, GEORGIA

Bill in Equity

No. 25864

[Title omitted]

Motion ror SumMary JupcmMzntT—Filed May 27, 1963

Come now C. E. Newton, Frank M. Willingham, Mrs.

Francis K. Hall, Mrs. Kenneth W. Dunwody, Mr. George

P. Ranking, Jr., Mrs. Frederick W. Williams and Mrs. T. J.

a

Stewart, petitioners in the foregoing matter and make this

motion for a summary judgment, and respectfully show:

36

1.

There is no genuine issue as to any material fact and

your petitioners are entitled to a judgment as a matter of

law.

Wherefore, your petitioners pray that this their motion

for summary judgment be granted and that they have such

other and further relief as the Court may deem fit and

proper.

Jones, Sparks, Benton & Cork, Attorneys for peti-

tioners.

Certificate of service (omitted in printing).

{fol. 55] [File endorsement omitted]

(fol. 56]

Is tHe Supezion Court, Biss County, Grorcu

Bill in Equity

No. 25864

[Title omitted]

Motion or Rev. E. 8S. Evans, er au. TO InTeERvenE—

Filed May 29, 1963

Come now, Rev. E. 8S. Evans, Louis H. Wynne, Rev.

J. L. Key, Rev. Booker W. Chambers, William Randall,

and Rev. Van J. Malone, and move this Honorable Court

for leave to file a petition of intervention in the above-

styled action, and for grounds show as follows:

1.

That the property which is the subject matter of the cap-

tioned action is presently used as a public park in the City

of Macon.

37

2.

The movants, being Negro residents of the City of Macon,

and all other Negroes similarly situated, are subject to

yeing irreparably harmed and damaged, in that, they are

subject to being deprived of the use of said park if the

prayers of the plaintiffs are sustained and a judgment is

rendered in their favor.

3.

That the interests and welfare of the movants will be

directly affected by the outcome of said suit, but there

are no parties to the subject action who are or can ade-

quately protect the legal rights and interests of the mov-

ants or the class which they represent, in that, some of the

interests of the defendants and the movants are not only

different but are, to some extent, adverse.

(fol. 57) 4

Wherefore, movants pray that:

(a) This motion be allowed ;

(b) That movants be granted leave to file their inter-

yenors’ petition in the above-captioned action;

(c) That all of the proceedings in the instant case be

held in abeyance pending the filing of the intervenors’

pleadings ;

(d) That movants be granted thirty (30) days in which

to file their pleadings in the captioned action.

This 26th day of May, 1963.

Donald L. Hollowell, Counsel for Movants.

85914 Hunter St., N. W., Atlanta 14, Georgia, Ja. 5-8372.

38

[fol. 58]

OrpeEr—May 28, 1963

Motion read and considered, let the same be filed.

It Is Hereby Ordered that the movants be, and they are

granted leave to file their pleadings of intervention in the

subject action within (20) Twenty days from the date of

this order. All other proceedings in this action are hereby

continued pending the filing of said pleadings within the

time specified.

This 28 day of May, 1963.

O. L. Long, Judge, Bibb Superior Court,

[File endorsement omitted]

[fol. 59]

In THE Superior Court, Biss Country, Grorau

Bill in Equity

No. 25864

[Title omitted]

INTERVENORS’ PEtiT1ION—Filed June 18, 1963

Comes now, Rev. E. S. Evans, Louis H. Wynne, Rev.

J. L. Key, Rev. Booker W. Chambers, William Randall,

and Rev. Van J. Malone, who file this their intervention

to the claim for relief of the plaintiffs, in their individual

capacities and as they constitute the Board of Managers

of Baconsfield, and show as follows:

1.

That the intervenors are Rev. E. S. Evans, Louis H.

Wynne, Rev. J. L. Key, Rev. Booker W. Chambers, William

Randall, and Rev. Van J. Malone, and are citizens of the

United States of America and of the State of Georgia. In-

tervenors are domiciliaries and residents of Bibb County,

Georgia, and of the City of Macon, Georgia. Each of the

——_—_—

intervenors is a member of the Negro race and bring this

petition of intervention on behalf of themselves and other

Negroes similarly situated as a class.

39

2.

That the present parties defendant, as nained and desig-

nated in the petition, cannot adequately represent and as-

sert the interest of the intervenors. For the intervenors

seek to have Baconsfield Park operated upon an integrated

basis and the present parties defendant have an interest in

continuing to operate the said park upon a desegregated

(fol. 60] basis according to Item 9 of the Will of Augustus

Qctavius Bacon which is attached to the plaintiffs’ petition,

marked “Exhibit 2”, and thereby incorporated herein by

reference.

3.

That any judgment, final order, or decree entered in the

captioned action would be binding upon the intervenors

and thus prejudicial to them.

4.

That by the Will of Augustus Octavius Bacon, the real

property described in Item 9 became vested in the City of

Macon in fee simple absolute upon the death of the testator

and certain of his devisees and legatees under his will and

codicil.

5.

That the Board of Managers charged by the Will with

the obligation to control, maintain, and regulate Bacons-

field -Park is an agency of the City of Macon. Said Board

of Managers having become such by the City of Macon hav-

ing appointed and having designated its members from the

date of creation of the park, until the present time, and by

the City of Macon having adopted the Acts and Resolutions

of said Board and by having acquiesced in the same.

6.

That the restriction and limitation reserving the use and

enjoyment of the devise, legacy, and bequest of Bacons.-

field Park to the City of Macon to “White women, white

girls, white boys and white children of the City of Macon,”

is violative of the public policy of the United States of

America, treaties and other international obligations of the

(fol.61] United States and violative of the Constitution

and laws of the State of Georgia. The public policy of the

United States and of the State of Georgia being that no

citizen is to be deprived of the use, benefit, and enjoyment

of any publicly owned or supported facility solely because

of his race, national origin, creed, or religion.

7.

That this Honorable Court, as an agency of the State

of Georgia, cannot consistently with the equal protection

clauses of the Fourteenth Amendment of the United States

Constitution and the equivalent provisions of the Constitu-

tion of the State of Georgia, enter an order, as a court of

equity, appointing three (3) freeholders, residents of the

City of Macon, to serve as successor trustees, who in such

capacity as trustees could operate and maintain Bacons-

field Park upon a segregated basis; that is, the use and en-

joyment of the same being limited and restricted to “white

women, white girls, white boys and white children of the

City of Macon.” Such an order appointing private citizens

as trustees for the manifest and express purpose of operat-

ing, managing, and regulating public property which passed

to the City of Macon under a charitable trust created by

will in a racially discriminatory manner, is violative of the

Fourteenth Amendment to the United States Constitution

and of the equivalent provisions of the Constitution of the

State of Georgia.

41

(fol. 62] For a Second Answer and Defense

8.

That at the time the said will was probated and the real

property known as Baconsfield Park passed to the City

of Macon, the law of the land and of the State of Georgia

as expressed and stated in the case of Plessy v. Ferguson,

163 U. S. 537, and decisions of the courts of this state and

the laws of the State off Georgia consistent therewith per-

mitted a racially restrictive condition and limitation im-

posed upon & public charitable trust to be enforced by the

courts of the state wherein the trust was located. Since that

time, the law of the land as reflected in the cases of Brown v.

Board of Education, 347 U. S. 483, and the Memphis Park

Case (decided in the United States Supreme Court May

97, 1963), and in decisions and judgments of the courts

of this State and the laws consistent therewith, has changed.

That is, discrimination based solely upon race is no longer

a permissible object of state action whether such action is

that of an administrative agency, the state executive officers

and employees, the state legislature, or of the state courts.

9.

That, although the charitable legacy, device, and bequest

at the time of its creation was capable of being executed

in the exact manner provided for in the will of the testator,

by operation of law it ig no longer capable of further execu-

tion in the exact mamner provided for by the testator,

Augustus Octavius Bacon. That this Court (sitting in

equity) effectuate the general charitable purpose of the

testator to establish and endow a public park within the

(fol. 63] City of Macon by refusing to appoint private per-

sons as trustees of the said Baconsfield Park.

10.

That the plaintiffs &s they appear by name and designa-

tion in the petition, Are not proper parties to maintain a

petition for the removal and appointment of trustees of a

Ty

public charitable trust as it does not appear that they have

the requisite authority as required by law nor the requisite

capacity and standing as required by law.

42

11.

That the plaintiffs, the named individuals and the Board

of Managers do not come into this Court with clean hands,

The plaintiffs seek judicial sanction of their alleged and

avowed intent, design, and purpose to have private per.

sons appointed in their place and stead as trustees, man-

agers of Baconsfield Park, so that the said Baconsfield Park

may be operated in violation and degradation of the con.

stitutional rights of the intervenors.

Wherefore, the intervenors respectfully pray that they

may have judgment against the petitioners with costs upon

the petitioners.

Donald L. Hollowell, Horace T. Ward, Counsel for

Intervenors.

Howard Moore, Jr., Of Counsel.

{fol.64] June 14, 1963.

Certificates of service (omitted in printing).

[File endorsement omitted]

[fol. 65]

In THE Superior Court, Biss County, Georcia

No. 25864

Bill in Equity

[Title omitted]

AMENDMENT TO PLainTiFFs’ PetrT1IoN—

Filed January 8, 1964

Come now the plaintiffs in the above styled case and by

leave of the Court first had and obtained, amend their peti-

tion as follows:

43

1.

By adding thereto a paragraph “14” to read as follows:

“since the time when the original petition was filed, an in-

tervention has been filed on behalf of certain negro resi-

dents of Macon, Bibb County, Georgia, to-wit: Rev. E. 8S.

Evans, Louis H. Wynne, Rev. J. L. Key, Rev. Booker W.

Chambers, William Randall, and Rev. Van J. Malone. That

intervention was filed on behalf of the above named parties

and on behalf of ‘other Negroes similarly situated’ as a

class”.

2.

By adding thereto paragraph “15” to read as follows;

“Plaintiffs show that by the phrase ‘other Negroes similarly

situated’ the intervenors encompass all Negro residents of

Macon, Bibb County, Georgia. Plaintiffs show that each

and every one of the intervenors named in the above para-

graph plus each and every member of the Negro race resi-

dent in Macon, Bibb County, Georgia, as the class repre-

sented should be permanently enjoined from entering the

grounds of Baconsfield, using any of the facilities located

thereon or in any other way interfering with plaintiffs in

(fol. 66] their efforts to carry out the express testamentary

wishes of A. O. Bacon relating to the classes of persons to

be benefited by his grant of Baconsfield.”

3.

By adding thereto a paragraph “16” to read as follows:

“Plaintiffs show that a trust was established under the

Will of A. O. Bacon for his heirs. The trust has been

executed as regards four of his seven heirs now living and

a distribution of property made to them. They are A. O. B.

Sparks, Willis B. Sparks, Jr., Virginia Lamar Sparks and

M. Garten Sparks. The interests of the remaining three

heirs, i.e. Louise Curry Williams, Shirley Curry Cheatham,

and Manley Lamar Curry, are still held under an unex-

ecuted trust by four trustees holding under the authority of

the will, to-wit: Guyton Abney, J. D. Crump, T. I. Den-

a

mark and Dr. W. G. Lee. Plaintiff shows that these seven

persons have a definite interest in the disposition of this

litigation, since if the trust purpose expressed in the Wil] of

A. O. Bacon with respect to the designation of persons who

may use Baconsfield, fails, the property comprising Bacons.

field together with property, the rentals ‘of which provide

the upkeep of Baconsfield, will revert and lapse into the

estate of A. O. Bacon thence to be distributed to the above

named heirs.”

44

4.

By adding thereto a paragraph “17” to read as follows:

“Plaintiffs show that there are no parties to this case

with an-interest identical to that of the Sparks heirs of

A. O. Bacon such as to afford adequate representation to

(fol. 67] the interests of the said heirs.”

5.

By adding thereto a prayer to read as follows: “Plain-

tiffs pray that A. O. B. Sparks, Willis B. Sparks, Jr.,

Virginia Lamar Sparks, and M. Garten Sparks be allowed to

intervene and that Guyton Abney, J. D. Crump, T. I. Den-

mark and Dr. W. G. Lee be allowed as Trustees to assert

the interest of Louise Curry Williams, Shirley Curry

Cheatham and Manley Lamar Curry.”

6.

By adding thereto a prayer to read as follows: “Plain-

tiffs pray that each and every one of the intervenors named

in paragraph one, plus each and every member of the

Negro race resident in Macon, Bibb County, Georgia, as

the class represented be permanently enjoined from enter-

ing the grounds of Baconsfield, using any of the facilities

located thereon, or in any other way interfering with plain-

tiffs in their efforts to carry out the express testamentary

wishes of A. O. Bacon relating to the classes of persons

to be benefited by his grant of Baconsfield.”

45

Wherefore, plaintiffs pray that their amendment be al-

lowed.

Jones, Sparks, Benton & Cork, Attorneys for Plain-

tiffs.

Orper—January 8, 1964

The within amendment being presented to me, it is

allowed and ordered filed, subject to demurrer.

This the 8 day of January, 1964.

O. L. Long, J.S.C.M.C.

(fol.68] Certificate of service (omitted in printing).

[File endorsement omitted]

(fol. 69]

In THE Superior Court, Biss County, Georcia

No. 25864

Bill in Equity

[Title omitted]

PetiTion For INTERVENTION—Filed January 8, 1964

The petition of A. O. B. Sparks, Willis B. Sparks, Jr.,

Virginia Lamar Sparks, and M. Garten Sparks, respect-

fully shows to the court the following facts:

1.

Petitioners herein are grandchildren of the heirs of A. O.

Bacon, deceased, being children of his deceased daughter,

Mary Louise Bacon Sparks. The widow and only other

child of the said A. O. Bacon who survived him are now

deceased.

2.

Petitioners have an interest in the subject matter of the

above styled case, since if the trust purpose expressed in

46

the Will of A. O. Bacon, including the restriction of the

use of Baconsfield Park to white persons, is not carried

out, the property will lapse into the Estate of A. O. Bacon,

ultimately to be distributed to his heirs.

3.

Petitioners show that there is no party presently before

the Court to represent their said interest.

4.

Petitioners present the following requests for relief pray-

ing that:

(a) They be allowed to intervene and be heard.

(b) That all of the prayers of plaintiffs, the Board

of Managers of Baconsfield, be granted.

(fol. 70] (c) That each and all of the Negro intervenors

and all of those whom they represent be permanently

enjoined from entering Baconsfield Park or from in

any way interfering with the Board’s management of

the Park for the use and benefit of white persons only,

5.

Further, petitioners emphasize beyond all chance for

doubt that their desire is that the above enumerated prayers

be granted, that the City of Macon be replaced as Trustee

and that such other and further relief be granted by this

Court as will insure that Baconsfield Park will continue

to be operated in strict accordance with the Will of A. 0.

Bacon. It is the most fervent hope of intervenors that

Baconsfield will remain as a memorial to the memory of

the infant sons of A. O. Bacon and as a park for the benefit

of the white boys, white girls and white women of Macon,

Georgia, under the direction of the plaintiff Board of Man-

agers.

47

6.

Petitioners further pray that if this Court does not enter

an order in this case effectuating the continued adminis-

tration of Baconsfield in accordance with the Will of A. O.

Bacon for the sole benefit of white persons, That in that

event,—And Only In That Event—this honorable Court de-

eree that the trust purpose having failed, the property

included in Baconsfield and that property, the rental of

which had supplied the income for the upkeep of Bacons-

field, both be held to revert and lapse into the estate by

operation of law.

Jones, Sparks, Benton & Cork, Attorneys for Peti-

tioners.

{fol. 71]

Orver—January 8, 1964

The within petition for intervention being presented to

me, it is allowed and ordered filed, subject to demurrer.

This the 8 day of January, 1964.

QO. L. Long, J. 8. C. M. C.

Certificate and acknowledgment of service (omitted in

printing).

[File endorsement omitted]

{fol. 72]

In THE Superior Court, Biss County, Groraiua

No. 25864

Bill in Equity

{Title omitted]

AMENDMENT TO ANSWER AND Cross Brip—

Filed January 8, 1964

Come now Guyton Abney, J. D. Crump, T. I. Denmark,

and Dr. W. G. Lee, defendants in the above styled case, and

. aa

by leave of the Court first had and obtained amend their

answer as follows:

1.

By adding a paragraph 3 to read as follows: “Thege

defendants are Trustees under the Will of A. O. Bacon

for the benefit of certain of his heirs, to-wit: Louise Curry

Williams, Shirley Curry Cheatham and Manley Lamar

Curry. A similar trust has become executed with respect to

certain other heirs, to-wit: A. O. B. Sparks, W. B. Sparks,

Jr., Virginia Lamar Sparks, and M. Garten Sparks, but the

trust with respect to the first named group of heirs, which

shall hereinafter be referred to as the ‘Curry Heirs’, has

not become executed.”

2.

By adding a paragraph 4 to read as follows: “defen-

dants show that the Curry Heirs have an interest in the

subject matter of the above styled case, since if the trust

purpose expressed in the Will of A. O. Bacon, including the

restriction of the use of Baconsfield to white persons, is

not carried out, the property will lapse into the Estate of

A. O. Bacon, ultimately to be distributed to his heirs.”

(fol. 73] 3.

By adding by way of a cross bill the following prayer:

“Defendants as such Trustees and on behalf of the said

Curry heirs present the following requests for relief pray-

ing:

(a) That they be allowed to assert the interest of the

Curry heirs.

(b) That all of the prayers of plaintiffs, the Board

of Managers of Baconsfield, be granted.

(c) That each and all of the Negro intervenors and all

of those whom they represent be permanently enjoined

from entering Baconsfield or from in any way inter-

49

fering with the Board’s management of Baconsfield

for the use and benefit of white persons only.”

4.

By adding a paragraph to read as follows: “Further,

defendants as such Trustees and on behalf of the Curry heirs

emphasize beyond all chance for doubt that the desire of the

Curry heirs is that the above enumerated prayers be

granted, that the City of Macon be replaced as Trustee and

that such other and further relief be granted by this Court

as will insure that Baconsfield will continue to be operated

in strict accordance with the Will of A. O. Bacon. It is the

most fervent hope of the Curry heirs that Baconsfield will

remain as a memorial to the memory of the infant sons of

A. 0. Bacon and as a park for the benefit of the white boys,

white girls and white women of Macon, Georgia, under the

direction of the plaintiff Board of Managers.”

(fol. 74] 5.

By adding by way of cross bill the following prayer: “De-

fendants as such Trustees and on behalf of the Curry heirs

further pray that if this Court does not enter an order in

this case effectuating the continued administration of

Baconsfield in accordance with the Will of A. O. Bacon for

the sole benefit of white persons, that in that event,—And

Only In That Event—this honorable Court decree that the

trust purpose having failed, the property included in

Baconsfield and that property, the rental of which had

supplied the income for the upkeep of Baconsfield, both be

held to revert and lapse into the estate by operation of

law.”

Jones, Sparks, Benton & Cork, Attorneys for the

aforementioned Trustees.

Orper—January 8, 1964

The within Amendment to Answer and Cross Bill being

presented to me, it is allowed and ordered filed, subject to

demurrer.

50

This the 8 day of January, 1964.

([fol.75] Certificate and acknowledgment of Service

(omitted in printing).

[File endorsement omitted]

[fol. 76]

In THE Superior Court, Biss County, Georcu

No. 25864

Bill in Equity

[Title omitted]

AMENDMENT TO ANSWER oF CiTy or Macon—

Filed February 5, 1964

Comes now the City of Macon, defendant in the above

stated case, and by leave of the Court first had and ob-

tained amends its answer heretofore filed and respect-

fully shows:

1.

Pursuant to a resolution adopted by the Mayor and Coun-

cil of the City of Macon at its regular meeting on Febru-

ary 4, 1964, a copy of which is hereto attached marked

Exhibit A, the City of Macon acting through its Mayor and

Clerk has resigned as Trustee under Items 9th and 10th of

the Will of the late Senator Augustus Octavius Bacon, a

copy of said resignation being hereto attached marked Ex.

hibit B.

2.

Upon the acceptance of said resignation by this Court

and the appointment of new Trustees to serve in lieu of the

City of Macon, if this Court sees fit to appoint such new

Trustees, the City of Macon will have no further duties to

perform as such Trustee and will no longer be a necessar;

or proper party in said case.

51

Wherefore, defendant prays:

(1) That this amendment be allowed and ordered filed

as part of the record in said case;

(fol.77] (2) That the resignation of the City of Macon as

Trustee under the Will of Senator Augustus Octavius

Bacon be accepted, and that the Court take such further

action in the premises as to the Court may seem meet

and proper;

(3) That defendant be hence discharged.

Trammell F. Shi, City Attorney.

OnpER

The foregoing amendment allowed and ordered filed.

This February 5, 1964.

O. L. Long, J.8.C.M.C.

Certificates of service (omitted in printing).

(fol. 79]

Exuusir “A” To AMENDMENT TO ANSWER

Reso.ution oF THE Mayor anv CounciL

or THE City or Macon Apoprep Fessvuary 4, 1964

Wuenreas, in Civil Action No. 25864, pending in the Su-

perior Court of Bibb County, Georgia, captioned Charles E.

Newton, et al. vs. City of Macon, et al. the defendant City

of Macon has heretofore filed its answer admitting that it

has not for some time prior to filing said answer carried

out as Trustee all of the provisions of the trust established

in Items 9th and 10th of the Last Will and Testament of

the Late Senator Augustus Octavius Bacon with reference

to the property known as Baconsfield, said Items 9th and

10th reading as follows:

“Item 9th

“I direct that there by said Trustees laid off and ac-

curately defined and permanently marked by enduring

52

monuments, the following described part of my farm

which is situated in part within and part without the

corporate limits of the City of Macon, and known as

‘Baconsfield,’ the same to be set a part and dedicated

to the purposes, uses and enjoyments as hereinafter

more fully set forth and detailed. The said part of the

property thus set apart is bounded as follows: There

is on the Southeastern part of my said farm a four

acre rectangular tract which formerly belonged to

James Pepper, and which is commonly known as the

‘Pepper Place’ the same having been purchased and

added to my farm, for this description, beginning at

[fol. 80] the Southeastern corner of said rectangular

tract, the boundary line of the property runs in a

Northerly direction along the Eastern boundary line

of said Pepper Place and thereafter in a direct prolon-

gation of the same to a point nine hundred and sixty.

three feet and five-tenths from the said starting point,

thence in a slightly northwestern direction sixty-three

feet and five-tenths, thence in a northerly direction

three hundred and thirty-two feet across boulevard

Baconfield to a point on the Western side of said Boule-

vard, thence three hundred and sixteen feet along the

western border of said Boulevard to a point on the

same immediately opposite the junction of said Boule-

vard and Gray Street, thence, in a direction a little

West of North, twenty-four hundred and eighty feet

to an elm tree, thence at right angles sixteen hundred

and sixty-two feet to the bank of the Ocmulgee River,

thence in a Southeasterly direction along the bank of

said river thirty-three hundred and ninety-seven feet,

thence in a direct line to the Southwest corner of the

said Pepper lot, thence four hundred and thirty-seven

feet along the Southern boundary line of said Pepper

lot to the original starting point; the said metes and

bounds of the said tract of land being correctly platted

and defined on a map of the same hereto attached,

made by H. D. Cutter and upon which for the purpose

of identification, I have endorsed my original signa-

_—

53

(fol. $1] ture. The larger part of the property thus

described and bounded is a portion of a trust estate

originating with me and created solely by me for the

benefit of my wife and children during my life and for

their benefit and use after my death in such estates

and with such remainders as should be specified and

directed by me in my last Will and Testament. For

the purpose of carrying out fully the purpose and in-

tent of the trust thus created, | hereby give, bequeath

and devise the said property consisting of the tract of

land hereinbefore described and bounded and platted

on said map unto the said Trustees, viz. Alexander

Lawton Miller, Custis Nottingham, Richard C. Jordan

and Warren Roberts, in trust for the sole joint use,

benefit and enjoyment of my wife, Virginia Lamar

Bacon, and of my two daughters, Mary Louise Bacon

Sparks and Augusta Lamar Bacon Curry, during the

term of their natural lives, as follows: So long as

they shall all live they shall be entitled to the equal

enjoyment and use of the same including all revenues

and profits in any way derived therefrom. When Mrs.

Virginia Lamar Bacon shall die, the use, benefit and

enjoyment of the entire property herein described and

bounded shall belong to my two said daughters equally,

including all revenues and profits in any way derived

from the same, during the full term of their natural

lives. Upon the death of either of my said daughters,

{fol. 82] her interest in said property shall be enjoyed

by her children and the survivors of them until

death of my last surviving daughter. Upon the death

of my said wife and of each of my said daughters, and

of the last survivors of them, the trust created in this

property by this said Ninth Item of this Will in the

said tract of land thus defined, bounded and platted

shall crase, and thereafter shall close all interest and

right of enjoyment of any person or persons whom-

soever in said property except as hereinafter specified

and provided, to-wit: When my wife, Virginia Lamar

Bacon and my two daughters, Mary Louise Bacon

——. OMIT Sf

Sparks and Augusta Lamar Bacon Curry, shall aij

have departed this life, and immediately upon the

death of the last survivor of them, it is my will that

all right, title and interest in and to said property here.

inbefore described and bounded, both legal and equi-

table, including all remainders and reversions and every

estate in the same of whatsoever kind, shall thereupon

vest in and belong to the Mayor and Council of the City

of Macon, and to their successors forever, in trust for

the sole, perpetual and unending use, benefit and en.

joyment of the white women, white girls, white boys

and white children of the City of Macon to be by

them forever used and enjoyed as a park and pleasure

ground, subject to the restrictions, government, man.

agement, rules and control of the Board of Managers

(fol. 83] hereinafter provided for; the said property

under no circumstances, or by any authority whatso-

ever, to be sold or alienated or disposed of, or at any

time for any reason devoted to any other purpose or

use excepting so far as herein specifically authorized.

for the control, management, preservation and improve-

ment of said property there shall be a Board of Man-

agers consisting of seven persons of whom not less

than four shall be white women, and all seven of whom

shall be white persons. The Members of this Board

shall first be selected and appointed by the Mayor and

Council of the City of Macon, or by their successors

in said trust; and all vacancies in said Board shall be

filled by appointments made by the Mayor and Council

of the City of Macon, or their successors, upon nomina-

tion made by the said Board of Managers and approved

by the said Mayor and Council of the City of Macon or

their successors. If practicable, I desire that there shall

be as a member of said Board of Managers at least one

male or female descendant of my own blood, not only

in the Board as at first constituted, but at all times

thereafter. The said Board of Managers shall at all

times have complete and unrestricted control and man-

agement of the said property, with power to make all

a

needful regulations for the preservation and improve-

ment of the same, and rules for the use and enjoyment

thereof, with power to exclude at any time any person

(fol. 84] or persons of either sex, who may be deemed

objectionable, or whose conduct or character may by

said Board be adjudged or considered objectionable,

or such as to render for any reason in the judgment

of said Board their presence in said grounds inconsist-

ing with or prejudicial to the proper and most success-

ful use and enjoyment of the same for the purposes

herein contemplated. The Board of Managers shall

have the poser to admit to the use of the property the

white men of the City of Macon, and white persons of

other communities, with the right reserved to at any

time withhold or withdraw such privilege in their dis-

eretion. To enable the Board of Managers to have a

fund for the payment of necessary expenses connected

with the management, improvement and preservation

of said property, including when possible drives and

walks, casinos and parlors for women, play grounds for

girls and boys and pleasure devices and conveniences

and grounds for children, flower yards and other orna-

mental arrangements, I direct that said Board may use

for purposes of income in any manner they may deem

best that portion of the property that lies Easterly of

the road known as Boulevard Baconsfield, beginning at

the north Macon bridge and including the ‘Pepper

Place,’ also all of said property lying on the river which

is property classed as low lands, or river bottom; but

in no event and under no circumstances shall any

part of the property herein conveyed and bounded and

[fol. 85] platted be ever sold or otherwise alienated

or practically disposed of by any person or authority

whatsoever, and excepting the portions of the prop-

erty which may be used for purposes of revenue as

aforesaid all the remainder of said property shall fore-

ever and in perpetuity be held for the sole uses, bene-

fits and enjoyments as herein directed and specified.

If it should be held that said property is subject to

ai

55

taxation when devoted to such uses as a park or Pleas.

ure ground, I request that proper steps be taken to gp.

cure from the State of Georgia a perpetual release

from all liability to taxation.

“I take occasion to say that in limiting the use and

enjoyment of this property perpetually to white people

I am not influenced by any unkindness of feeling i

want of consideration for the Negroes, or colored

ple. On the contrary I have for them the kindest fee.

ing, and for many of them esteem and regard, while

for some of them I have sincere personal affection,

“I am, however, without hesitation in the opinion that

in their social relations the two races should be for.

ever separate and that they should not have pleasure

or recreation grounds to be used or enjoyed, together

and in common. I am moved to make this bequest of

said property for the use, benefits and enjoyment of

the white persons herein specified, by my gratitude to

(fol. 86] and love of the people of the City of Macon

from whom through a long life time I have received

so much of personal kindness and so much of public

honor; and especially as a memorial to my ever

lamented and only sons, Lamar Bacon who died on the

21st day of December 1884 and Augustus Octavius

Bacon, Jr. who died on the 27th day of the same year.

And I conjure all of my descendants to the remotest

generation as they shall honor my memory and respect

my wishes to see to it that this property is cared for,

protected and preserved forever for the uses and pur-

poses herein indicated. I direct that said property dur-

ing the lives of my said wife and my two said daugb-

ters shall continue to be known and designated as

‘Baconsfield’ and that after their death, it shall be

forever and perpetually known as ‘Baconsfield,’ and

shall be so designated in all matters, documents and

papers relating thereto.

“While I make no restrictions, I request that the

Managers will preserve on the property my present

house residence, and the smaller house nearby which I

—

57

have personally occupied for so many years and which

I have called “he Hut’ the said houses to be used to

the best advantage, and in such localities on the prop-

erty as may be most desirable, for the comfort, con-

venience and pleasure of the white women, girls, boys

and children herein designated: and I trust that the

(fol. 87] managers of said property may find it to the

best interest of those who are to enjoy this property

that there shall be perpetually preserved the present

woods and trees upon the same. And I specifically direct

that during the said trust estate in said property for

the uses and benefit of my wife Virginia Lamar Bacon

and of my two daughters Mary Louise Bacon Sparks,

and Augusta Lamar Bacon Curry, neither the said

residence house nor the said smaller house known as

‘The Hut’ shall be removed or destroyed or materially

altered by addition or otherwise, but that the same dur-

ing the entire terms of said trust estate for life, be

carefully preserved in their present condition; and fur-

ther that during the terms of said trust estates and dur-

ing the lives of my said wife and my two said daugh-

ters, the woods and trees on said property be carefully

preserved, and that on one of them be cut down or

destroyed for any purpose whatsoever; and I further

specifically provide and direct that the said trustees

hereinbefore named and their successors shall not have

power or authority to sell or otherwise alienate or dis-

pose of the tract of land thus described, bounded and

platted or any part thereof during the continuance of

said trust or trusts or ut any other time, under any

circumstances and upon any account whatsoever, and

all such power to make such sale or alienation is hereby

hereby expressly denied to them, and to all others.”

{fol. 88] “Item 10th

“To make still further provision for the preserva-

tion, management and improvement of the property

set apart in the foregoing 9th Item of this Will as a

park and pleasure grounds as aforesaid, I will and be-

queath to the Mayor and Council of the City of Macon,

and to their successors, ten bonds of the Macon Rail.

way and Light Co., each of said ten bonds being for

$1000.00 and in the aggregate being for $10,000.00 and

bearing interest at the rate of five per centum per

annum, and at present in the custody of the The Ri

National Bank in Washington, D. C., the said bonds

and all monies or things of value resulting and derived

therefrom to be held by the said Mayor and Council

of the City of Macon and their successors for the fol-

lowing trusts and uses, to-wit: So long as the prop-

erty known and to be known perpetually as ‘Bacons.

field,’ specified, bounded and described in the foregoing

9th Item of this Will, shall continue to be held in trust

by the Trustees named in the said foregoing 9th Item

and their successors for the use and beiefit of my said

wife and my two said daughters, or either of them,

until the said property shall vest in the Mayor and

Council of the City of Macon to be held in trust for

the purposes specified and for the uses directed in the

said 9th Item. The said Mayor and Council of the

City of Macon shall as said Trustees collect the semi-

[fol. 89] annual interest which shall be paid on said

bonds, and as promptly as practicable invest the same

in interest bearing bonds to be added to and included

in said trust fund; and the interest received on the

additional bonds thus purchased, and from all other

bonds additional thereto resulting from and accruing

to said fund, shall in like manner be reinvesting in

interest bearing bonds, so that all income from said

fund or in any manner accuring to said fund shall as

far as practicable be semi-annually compounded and

added to the principal of the original fund. When the

said 9th Item and their cussessors shall cease to hold

said property in trust for my said wife and my said

daughters, as provided in the said 9th Item, and when

as therein provided, the Mayor and Council of the City

of Macon shall as Trustees be vested with said property

and the title to the same for the uses therein set

—

59

forth, they shall as may be required for the preserva-

tion, maintenance and improvement of said park and

pleasure ground, pay over to the Board of Managers

hereinbefore provided for, the income subsequently

received from said trust fund constituted of and re-

sulting from the said bonds; and all income derived

from said property, and from said bonds, and the

proceeds thereof, when not required for the needs of

said park and pleasure ground, be added to the said

principal fund, to the end that from increased income

it may be in greater and ever increasing degree beauti-

[fol. 90] ful and developed and equipped for the benefit

and enjoyment of those for whose pleasure and happi-

ness it is designated. If for any reason it should be

held that the Mayor and Council of the City of Macon

have not the legal power under the charter of the City

to hold said fund in trust for the purposes specified,

then unless said power is obtained through appropriate

legislation, I direct that the powers herein expressed

be conferred upon a trustee to be selected by the Mayor

and Council of the City of Macon, with such safeguards

and restrictions as may be prescribed by them for the

perpetual safekeeping and management of the fund.

And I give a similar direction if for any reason it

should be held that the Mayor and Council of the City

of Macon have not the legal power under their charter

to hold in trust for the purposes specified the property

designated for said park and pleasure ground, unless

said required power is conferred by appropriate legis-

lation. Should the Mayor and Council of the City of

Macon at any time consent to do so, then I direct that

they be authorized to receive the fund constituted of

said bonds and all additions thereto and the proceeds

thereof, and cover the same into the treasury of the

City, in consideration of the perpetual obligation of

the City to be evidenced by its bond or otherwise, to

provide and pay over annually to the said Board of

Managers an amount equal to five per centum interest

[fol. 91] upon the sum thus covered into the treasury,

—ay

to be devoted by said Board to the uses hereinbefore

specified. In making this bequest as expressed in this

and the preceding item of my Will, I have been mind.

ful to preserve the full use and enjoyment of the real

estate to my wife and daughters during their natural

lives, and also of the fact that the entire bequest in

value represents a very much smaller proportion of

my estate than would have been the share in it of my

two sons had they lived. As there will be no one of

my descendants who now bears my name by right of

birth, or through voluntary choice, an additional rea-

son is furnished why I should deem it proper that in

devoting this property to the uses specified, I should

at the same time link their memories with the plea.

sures and enjoyments of the women and children and

girls and boys of their own race in the community of

which they once formed a happy part.”

and,

Wueneas, under certain decisions of the Federal courts

the City of Macon has realized that it could not as a numici-

pal corporation carry out all of said provisions; and

Wuengas, the Mayor and Council deem it to be in the

public interest that Baconsfield be operated and maintained

for the benefit of the public rather than for private benefit

or profit ; and

Wuenreas, the Mayor and Council are greatly concerned

(fol. 92] that if Baconsfield is not operated and maintained

in accordance with all of the provisions of the Will of

Senator Bacon, the property may revert to private persons

who are heirs at law of or legatees under the Will of

Senator Bacon, in which case Baconsfield would become

commercial or residential property or property of a nature

wherein no part of the public would have the enjoyment of

the property contemplated by Senator Bacon; and

Wueneas, the City is advised that the income producing

property which the late Senator Bacon bequeathed in trust

for the purpose of maintaining Baconsfield is sufficient for

61

that purpose and that if the Court decides to appoint new .

Trustees the park may be economically maintained by the

Trustees in accordance with the expressed intentions of the

jate Senator Bacon, and at no cost to the City in connection

with such operations and maintenance ; and

Wuereas, it is the considered opinion of the Mayor and

Council that it is against good conscience for the City of

Macon to continue to serve as ‘'rustee under said Will

under circumstances where as such Trustee it cannot carry

gut the plain and unambiguous terms of the trust; and

Wurnreas, in the light of the foregoing it is the considered

opinion of the Mayor and Council that the City of Macon

should forthwith resign as Trustee under the Will of Sena-

tor Bacon;

Now, THEREFORE, be it resolved by the Mayor and Council

of the City of Macon, and it is hereby resolved, that the

City of Macon forthwith resign as Trustee under the trust

established in Items 9th and 10th of the Will of the late

Senator Augustus Octavius Bacon.

{fol. 93] Resotvep Furtuer, that the Mayor and the Clerk

of Council be authorized to sign in the name of the City

of Macon a written resignation of such trust and deliver

the same to Mr. Trammell F. Shi, City Attorney, with in-

structions to him to deliver it to the Superior Court of

Bibb County, Georgia, in the litigation now pending insti-

tuted by the Board of Managers of Baconsfield, created in

said Will, against the City of Macon and others.

[fol. 94]

Exuipit “B” To AMENDMENT TO ANSWER

RESIGNATION OF THE City or Macon as TRUSTEE

Unper Witt or Senator Aucustus Octavius Bacon

Pursuant to a resolution adopted on the 4th day of

of February, 1964, by Mayor and City Council of the City

of Macon, the City of Macon hereby resigns as Trustee of

the property known as Baconsfield under the trust estab-

62

lished in Items 9th and 10th of the Will of the late Senator

Augustus Octavius Bacon.

Iw Wirness Wueneor, as directed in the aforesaid regolp.

tion, the City of Macon has caused these presents to be

executed by the Mayor and the Clerk of Council and its

seal affixed, this the 4th day of February, 1964.

Tue City or Macon

By B. F. Merritt, Jr.

Mayor of the City of Macon

Attest: Alex B. Cameron

Clerk of Council

City of Macon

(Seal of the City of Macon)

| [File endorsement omitted]

(fol. 95]

In tHe Svurezzion Covet, Biss County, Georau

No. 25864

Bill in Equity

[Title omitted]

AMENDMENT To InTERVENORS’ PetiTIon—

Filed March 5, 1964

Comes now, the intervenors in the above-styled case,

Rev. E. S. Evans, Louis H. Wynne, Rev. J. L. Key, Rev.

Booker W. Chambers, William Randall, and Rev. Van J.

Malone, and by leave of Court first had and obtained,

amend their petition by adding thereto four additional para-

graphs to be known as paragraphs 12, 13, 14, and 15, and

a prayer, as follows:

12.

That the equal protection clause of the Fourteenth

Amendment to the United States Constitution prohibits

this Court from enjoining Negroes from use of the park.

63

13.

That the equal protection clause of the Fourteenth

Amendment prohibits this Court from accepting the resig-

nation of the City of Macon as trustee and appointing new

trustees for the purpose of enjoining the racially discrimina-

tory provision in the will of A. O. Bacon.

14.

That Georgia Code Annotated, Section 69-504 prescribes

racial discrimination and is therefore violative of the equal

{fol. 96) protection clause to the Fourteenth Amendment.

since the racially discriminatory provision in A. O. Bacon’s

yill was dictated by that unconstitutional statute, enforce-

ment of the racially discriminatory provision is constitu-

tionally prohibited.

15.

Georgia Code Annotated, Section 108-202, properly con-

strued, requires that the racially discriminatory provision

in A. OU. Bacon’s will be declared null and void.

Wherefore, the intervenors respectfully pray that this

Court withhold approval of the attempted resignation of the

City of Macon as trustee under the will of A. O. Bacon,

direct the City of Macon to continue to fulfill this para-

mount constitutional obligation to administer the park on

a racially non-discriminatory basis, and deny the injunction

sought by plaintiffs to exclude Negroes from use of the

park.

Wherefore, the intervenors pray that this amendment be

allowed.

Donald L. Hollowell, 85914 Hunter St., N. W., At-

lanta, Georgia 30314, Attorney For Intervenors.

William H. Alexander, Of (‘ounsel For Intervenors.

64

[fol. 97]

Orper—March 5, 1964

The foregoing amendment read and considered,

It Is Ordered that the same be filed, subject to objections

This 5 day of March, 1964.

O. L. Long, Judge, Superior Court, Macon Judicia|

Circuit.

[File endorsement omitted]

Certificate of Service (omitted in printing).

[fol. 99]

In THE Superior Court, Biss County, Gzorou

No. 25864

Bill in Equity

Cuarntes E. NewTon, ET AL.,

v.

Crry or Macon, eT AL.

Oxper anp Decree—March 10, 1964

The Motion for Summary Judgment filed in behalf of

petitioners in the above captioned matter having come on

regularly to be heard, and the Court having duly considered

all pleadings filed in behalf of all parties to said cause

and the briefs filed in behalf of petitioners and the inter-

venors Rev. E. 8. Evans, Louis H. Wynne, Rev. J. L. Key,

Rev. Booker W. Chambers, William Randall, and Rev. Van

J. Malone, it is

Considered, Ordered and Adjudged as follows:

(1) The intervenors named above are proper parties

to this case and are proper representatives of the class

65

which their intervention states they represent, to-wit, the

negro citizens of Bibb County, Georgia, and the City of

Macon, Georgia.

(2) The defendants Guyton G. Abney, J. D. Crump, T. 1.

Denmark and Dr. W. G. Lee, as successor Trustees under

the Last Will and ‘Testament of Augustus Octavius Bacon,

deceased, are also proper parties to the case, as are the in-

tervenors A. O. B. Sparks, Willis B. Sparks, Jr., Virginia

Lamar Sparks and M. Garten Sparks.

(3) The defendant the City of Macon having submitted

its resignation as ‘Trustee of the property described in the

petition and known as Baconsfield, said resignation is here-

(fol. 100) by accepted by the Court.

(4) Under the principle that a trust shall not fail for

want of a trustee it becomes the duty of this Court to ap-

point new trustees to serve in lieu of the City of Macon;

and the following, all being citizens and residents of Bibb

County, Georgia, are hereby appointed as Trustees, to-wit,

liugh M. Comer, Lawton Miller and B. L. Register.

(5) The Court hereby retains jurisdiction for the pur-

pose of appointing another trustee or trustees in the event

any of the persons named above fails to accept his appoint-

ment or in the event of the future death, incompetency or

other cause whereby any or all of such Trustees fail or

cease to act as such.

(G) Since the relief herein granted is also that primarily

souglit by the defendants Guyton G. Abney, et al., as Trus-

tees under the Last Will and Testament of Augustus

Octavius Bacon and by intervenors A. O. B. Sparks, Willis

B. Sparks, Jr., Virginia Lamar Sparks and M. Garten

Sparks, it is therefore unnecessary to pass upon and the

Court does not pass upon the secondary contentions outlined

in paragraph 5 of the amendment to the answer and cross

bill filed by Guyton G. Abney, et al., as Trustees and in

paragraph 6 of the petition for intervention filed by the

above named intervening heirs.

66

So Ordered, this the 10 day of March, 1964.

O. L. Long, J.S.C.M.C.

[File endorsement omitted]

{fol. 101]

ATTACHMENT TO ORDER

RESIGNATION oF THE CiTy oF Macon as Trustee

Unper Wu or Senator Avaustus Octavius Bacox

Pursuant to a resolution adopted on the 4th day of

February, 1964, by Mayor and City Council of the City

of Macon, the City of Macon hereby resigns as Trustee of

the property known as Baconsfield under the trust estab.

lished in Items 9th and 10th of the Will of the late Senator

Augustus Octavius Bacon.

In Witness WHEREOoF, as directed in the aforesaid resolu.

tion, the City of Macon has caused these presents to be

executed by the Mayor and the Clerk of Council and its

seal affixed, this the 4th day of February, 1964.

Tue Crry or Macon

By B. F. Merritt, Jr.

Mayor of the City of Macon

Attest: Alex B. Cameron

Clerk of Council

City of Macon

(Seal of the City of Macon)

Fizep is Orrice

5 day of Feb. 1964

Era B. Goodner

Deputy Clerk

— .

{fol. 102] |

In THE Surenion Court, Biss County, GEORGIA

No. 25864

Bill in Equity

[Title omitted]

Acceptance oF Trust—Filed March 12, 1964

the undersigned, Hugh M. Comer, Lawton

L. Register, and pursuant to the Order and

orable O. L. Long, Judge, Superior Courts,

Macon Circuit, dated March 10, 1964, hereby formally ac-

cept their appointment as successor Trustees under Items

IX and X of the Last Will and Testament of Augustus

Octavius Bacon, Deceased.

This 11th day of March, 1964.

Hugh M. Comer, Lawton Miller, B. L. Register.

[File endorsement omitted]

(fol. 103] Clerk’s Certificate to foregoing transcript

(omitted in printing).

Come now

Miller and B.

Decree of Hon

(fol. 105]

Ix THE SUPREME CouRT OF THE STATE OF GEORGIA

Docket No. 22534

Rev. E. S. Evans, et al., Plaintiffs-in-error,

—Vs.—

Cuares E. Newton, et al., Defendants-in-error.

Motion To AMEND BILu or ExcePrions—

Filed May 8, 1964

To the Honorable Chief Justice and the Honorable Justices

of the Supreme Court of Georgia:

Comes now the plaintiffs-in-error, Rev. E. S. Evans,

et al. in the above-styled case which is before this Honor-

—

able Court by virtue of being an equity action from the

Superior Court of Bibb County, who with leave of Court,

and pursuant to Georgia Code Annotated, Sections 6-913

6-1309, 6-1401, and 81-1301, amend page one (1) of their

bill of exceptions by striking the designation of plaintiffs.

in-error and defendants-in-error, respectively, and substi.

tuting therefor the following:

Rev. E. S. Evans, Louis H. Wynn, Rev. J. L. Key,

Rev. Booker W. Chambers, William Randall, and

Rev. Van J. Malone, Plaintiffs-in-error,

—vs.—

The City of Macon; A. O. B. Sparks, Willis B. Sparks,

Jr., Virginia Lamar Sparks, M. Barton Sparks,

Heirs at law of A. O. Bacon; Guyton Adley, J. D.

Crump, J. J. Denmark, Dr. W. G. Lee, Successor

Trustees under the Will of A. O. Bacon; Hugh M.

[fol. 106] Comer, Lawton Miller, and B. L. Register,

Successor Trustees in lieu of the City of Macon,

Defendants-in-error.

68

Wherefore, plaintiffs-in-error pray that this their amend-

ment be allowed.

Donald L. Hollowell, William H. Alexander, Attor-

neys for Plaintiffs-in-Error.

(fol. 107j Certificate of Service (omitted in printing).

[fol. 108]

ORDER

The foregoing Amendment having been read and con-

sidered, the same is allowed and ordered filed.

, Justice, Supreme Court of

Georgia.

[fol. 109] [File endorsement omitted]

{fol. 110]

In THE SUPREME CourT OF THE STATE OF GEORGIA

Docket No. 22534

{Title omitted]

Seconp Motion TO AMEND Bit or Exceprions—

Filed May 18, 1964

To the Honorable Chief Justice and the Honorable Justices

of the Supreme Court of Georgia:

Comes now the plaintiffs-in-error, Rev. E. S. Evans,

et al. in the above-styled case which is before this Honor-

able Court by virtue of being an equity action from the

Superior Court of Bibb County, who with leave of Court,

and pursuant to Georgia Code Annotated, Sections 6-913,

6-1309, 6-1401, and 81-1301, amend page one (1) of their

pill of exceptions by striking the designation of plaintiffs-

in-error and defendants-in-error, respectively, and substi-

tuting therefor the following :

Rev. E. S. Evans, Louis H. Wynn, Rev. J. L. Key,

Rev. Booker W. Chambers, William Randall, and

Rev. Van J. Malone, Plaintiffs-in-error,

—vs.—

The City of Macon; A. O. B. Sparks, Willis B. Sparks,

Jr., Virginia Lamar Sparks, M. Barton Sparks,

Heirs at law of A. O. Bacon; Guyton Adley, J. D.

Crump, J. J. Denmark, Dr. W. G. Lee, Successor

Trustees under the Will of A. O. Bacon; Charles

(fol. 111] Newton, Mrs. T. J. Stewart, Frank M.

Willingham, Mrs. Francis K. Hall, George P. Ran-

kin, Jr., Mrs. Frederic W. Williams, and Mrs. Ken-

neth Dunwoody, Members of the Board of Managers

under will of A. O. Bacon; Hugh M. Comer, Lawton

Miller, and B. L. Register, Successor Trustees in

lieu of the City of Macon, Defendants-in-error.

70

Wherefore, plaintiffs-in-error pray that this their amend.

ment be allowed.

D. L. Hollowell, William H. Alexander, Attorneys for

Plaintiffs-in-Error.

{fol.112] Certificate of Service (omitted in printing),

[fol. 113]

OrpEr

The foregoing Amendment having been read and ¢op.

sidered, the same is allowed and ordered filed.

, Justice, Supreme Court of

Georgia.

(fol. 114] [File endorsement omitted]

(fol. 115]

In THE Supreme Court or THE STATE or Georcu

Docket No. 22534

[Title omitted]

Motion or Cuartes E. NewTon, ET AL. TO Susstrrure

Parties DerenpaNnt-1n-ERrrorn—Filed May 27, 1964

To the Honorable Chief Justice and the Honorable Justices

of the Supreme Court of Georgia:

Come now the defendants-in-error, Charles E. Newton,

Mrs. T. J. Stewart, Frank M. Willingham, Mrs. Francis K.

Hall, George P. Rankin, Jr., Mrs. Frederick W. Williams

and Mrs. Kenneth W. Dunwody and for reasons which will

hereinafter appear, pray that this Honorable Court sub-

stitute as parties defendant-in-error in place of Charles E.

Newton, Mrs. T. J. Stewart, Mrs. Frederick W. Williams

and Mrs. Kenneth W. Dunwody the four following named

residents of Macon, Bibb County, Georgia:

71

A. M. Anderson

Mrs. Dan O’Callaghan

Mrs. R. A. McCord, Jr.

Mrs. W. E. Pendleton, Jr.

In support of this motion the movants respectfully show

to this Court the following facts. After the Trial Court

entered its order on March 10, 1964, appointing Hugh

Comer, Lawton Miller and B. L. Register as Trustees of

Baconsfield, movants herein tendered to these three new

Trustees their resignations as members of the Board of

Managers of Baconsfield. This joint resignation was sub-

(fol. 116] mitted to the Trustees on March 18, 1964.

Thereafter, on May 21, 1964, at a time when the record

from the Trial Court had already been docketed in the

Supreme Court of Georgia, a meeting was held at which

the above named three Trustecs formally accepted the resig-

nations previously tendered to them and appointed a new

Board of Managers to consist of the following persons:

A. M. Anderson

Mrs. Francis K. Hall

Mrs. R. A. McCord, Jr.

Mrs. Dan O’Callaghan

Mrs. W. E. Pendleton, Jr.

George P. Rankin, Jr.

Frank M. Willingham

These seven appointees thereupon accepted their appoint-

ments in writing.

A copy of the resignation of the members of the former

Board of Managers is attached hereto as Exhibit “A”.

The acceptance of this resignation and the appointment of

a new Board by the three Trustees and the acceptance of

this appointment by the new Board of Managers is at-

tached hereto as Exhibit “B”. Movants hereby incorporate

these two exhibits by reference.

Four of the seven positions on the Board of Managers

are now filled by persons who did not serve on the Board

as it was constituted at the time this case was docketed in

72

the Supreme Court of Georgia, and who have never seryeg

on the Board before.

Wherefore, movants pray that A. M. Anderson, Mrs

R. A. McCord, Jr., Mrs. Dan O’Callaghan and Mrs, W, B.

(fol. 117] Pendleton, Jr. may be made parties defendant.

in-error and that Charles E. Newton, Mrs. T. J. §

Mrs. Frederick W. Williams and Mrs. Kenneth W. Dun.

wody may be stricken as parties defendant-in-error.

Jones, Sparks, Benton & Cork, Attorneys for Defen.

dants-in-Error, Board of Managers of Baconsfield,

Address of Counsel:

1007 Persons Building, Macon, Georgia, SHerwood

5-2821.

(fol. 118]

Georcis, Biss County.

ACKNOWLEDGMENT OF SERVICE, WAIVER AND ConsENT

BY New Boarp MemsBers

Come now A. M. Anderson, Mrs. Dan O’Callaghan, Mrs,

R. A. MeCord, Jr., and Mrs. W. E. Pendleton, Jr., and ask

that they may be substituted as parties defendant in error

in accordance with the attached motion of Charles E. New-

ton, et al., acknowledge service of the bill of exceptions,

waive all further service and notice and consent that the

case may proceed.

This 21st day of May, 1964.

A. M. Anderson, Mrs. Dan O’Callaghan, Mrs. R. A.

McCord, Jr., Mrs. W. E. Pendleton, Jr.

<a

{fol. 119]

Exuisit “A” to Motion to SusstituTe Parties

DEFENDANT IN ERROR

73

Grorcia, Biss County.

ResiGNATION oF Boarv or Manacers or BaconsFIELD

Come now Charles KE. Newton, Mrs. T. J. Stewart, Frank

M. Willingham, Mrs. Francis K. Hall, George P. Rankin,

Jr, Mrs. Frederick W. Williams and Mrs. Kenneth W.

Dunwody, all of said State and County, in their respective

capacities as members of the Board of Managers of Bacons-

field and pursuant to the order of Honorable O. L. Long,

Judge Superior Courts, Macon Circuit, dated March 10,

1964, the resignation of The City of Macon as Trustees

under Items IX and X of the Last Will and Testament of

Augustus Octavius Bacon, deceased, having been accepted;

and three (3) individual Trustees having been appointec by

the said Superior Court to serve in lieu of The City of

Macon in said capacity, the undersigned do hereby tender

to said Trustees their respective resignations as members

of said Board of Managers of Baconsfield.

This 18th day of March, 1964.

/s/ Cuaries E. Newton, JR.

/s/ Mrs. T. J. Stewart

/s/ Frank M. WiLLincHam

/s/ Mrs. Francis K. Haun

/s/ Georce P. Ranxin, JR.

/s/ Mrs. Freperick W. WILLIAMS

/s/ Mrs. Kenneta W. Dunwopy

74

(fol. 120]

Exuisit “B” to Motion To SusstTiTuTe Parrigs

DEFENDANT InN Error

Georgia, Biss County.

AccePTance or Resignation or Boarp or Managers

Come now Hugh M. Comer, Lawton Miller and B. |,

Register and after due consideration formally accept the

resignation of Charles E. Newton, Frank M. Willi

George P. Rankin, Jr., Mrs. Francis K. Hall, Mrs, T. J.

Stewart, Mrs. Frederick W. Williams, and Mrs. Kenneth W.

Dunwody from the Board of Managers of Baconsfield, such

resignation being dated March 18, 1964.

This the 21st day of May, 1964.

/8/ Huexu M. Comer

Hugh M. Comer

/8/ Lawton Mitier

Lawton Miller

/s/ B. L. Reeisrer

B. L. Register

APPOINTMENT OF New Boarp or Manacers

Further, we, the said Hugh M. Comer, Lawton Miller and

B. L. Register hereby appoint to the Board of Managers

of Baconsfield for terms of office to begin immediately, the

following persons: A. M. Anderson, Mrs. Francis K. Hall,

Mrs. R. A. McCord, Jr., Mrs. Dan O’Callaghan, Mrs. W.

KE. Pendleton, Jr., George P. Rankin, Jr., and Frank M.

Willingham.

This the 21st day of May, 1964.

/s/ Hucu M. Comer

Hugh M. Comer

/8/ Lawton Miter

Lawton Miller

/s/ B. L. Reaister

B. L. Register

75

{fol. 121)

A

CCEPTANCE OF APPOINTMENT BY New Boarp

Come now A. M. Anderson, Mrs. Francis K. Hall, Mrs.

pg. A. McCord, Jr., Mrs. Dan O’Callaghan, Mrs. W. E.

Pendleton, Jr., George P. Rankin, Jr., and Frank M. Wil-

lingham and accept appointment to the Beard of Managers

of Baconsfield for terms to begin immediately.

This the 21st day of May, 1964.

/s/ A. M. ANDERSON

A. M. Anderson

/s/ Mrs. Francis K. Haun

Mrs. Francis K. Hall

/s/ Mrs. R. A. McCorp, Jr.

Mrs. R. A. McCord, Jr.

/s/ Mrs. Dan O’CALLAGHAN

Mrs. Dan O’Callaghan

/8/ Mrs. W. E. Penpuzton, JR.

Mrs. W. E. Pendleton, Jr.

/s/ Georce P. Rankin, JR.

George P. Rankin, Jr.

/s/ Frank M. WILLiIncHAM

Frank M. Willingham

(fol. 122]

Orper Grantine Motion To SusstiTuTE Parties

DEFENDANT, ETC.—June 6, 1964

The within motion having been presented to this Court

and it being made to appear that A. M. Anderson, Mrs. Dan

O'Callaghan, Mrs. R. A. McCord, Jr. and Mrs. W. E.

Pendleton, Jr. have consented to be made parties defendant

in error and have acknowledged service of the bill of ex-

ceptions and have waived all further service and notice

and have consented that the case may proceed:

Wherefore, It Is Hereby Ordered and Adjudged that

A.M. Anderson, Mrs. Dan O’Callaghan, Mrs. R. A. McCord,

Jr. and Mrs. W. E. Pendleton, Jr. are made additional

76

parties defendant in error and that Charles KE. Newton,

Mrs. T. J. Stewart, Mrs. Frederick W. Williams and Mrg

Kenneth W. Dunwody are hereby stricken as parties de.

fendant in error.

This the 6th day of J une, 1964.

, Presiding Justice, Supreme

Court of Georgia.

(fol. 123]

Certificate of Service

Georgia, Bibb County.

I, Willis B. Sparks, III, of counsel of record for the

defendants-in-error, the Members of the Board of Managers

of Baconsfield, certify that I have served the foregoing mo-

tion and accompanying two exhibits and acknowledgment of

service and waiver by the four new Board members and

order upon the plaintiffs-in-error by mailing a copy of the

same to their attorney of record, Donald L. Hollowell, at

his office at 859% Hunter Street, Northwest, Atlanta,

Georgia.

I further certify that I have mailed a copy of all the

above described documents to Mr. Jack Greenberg, 10

Columbus Circle, New York, New York, Mr. Greenberg

appearing on the brief of the plaintiffs-in-error ag ¢.

counsel in the case.

I further certify that I have served the defendant-in-

error, City of Macon, by mailing a copy of the said motion

and the said two accompanying exhibits and the said ac-

knowledgment of service and waiver by the four new

Board members and order to its attorney of record, Tram-

mell F. Shi, at his office in the Southern United Building

in Macon, Georgia.

I acknowledge service on behalf of Guyton Abney, et al.,

as Successor Trustees under the Will of A. O. Bacon and I

further acknowledge service for W. B. Sparks, Jr., et al.,

as the “Sparks heirs” of A. O. Bacon.

This the 26th day of May, 1964.

Willis B. Sparks, 3rd.

({fol. 124] [File endorsement omitted]

77

{fol. 125]

Iv THE SuPREME CoURT OF THE State or GEORGIA

Docket No. 22534

Rev. K. S. Evans, Louis H. Wynn, Rev. J. L. Key, Rev.

Booker W. CuamBers, WiLLiAM RanpDaALL, and Rev. Van

J. Mavonz, Plaintiffs-in-Error,

vs.

Tur City or Macon: A. O. B. Sparks, Jr., Vincinia LaMar

Sparks, M. Barton Sparks, Heirs at Law of A. O.

Bacon; Guyton Ap.ey, J. D. Crump, J. J. Denmang,

Dr. W. G. Lez, Successor Trustees under the Will of

A. 0. Bacon; Cuartes Newton, Mrs. T. J. Stewasrt,

Frank M. WituincHam, Mas. Francis K. Hai, Grorce

P. Rankin, Jr., Mrs. Freventck W. Wiiiams, and Mrs.

KenneTH Dunwoopy, Members of the Board of Man-

agers under Will of A. O. Bacon; Hvucu M. Comer,

Lawton Mitzer, and B. L. Recister, Successor Trustees

in Lieu of The City of Macon, Defendants-in-Error.

Morion TO Avp Parties DereNDANT-IN-ERROR AND TO Deny

DEFENDANTS-IN-Error’s Motion To SusstiTuTE Pasties

DerenDANT-1n-Enron—Filed June 4, 1964

To the Honorable Chief Justice and the Honorable Justice

of the Supreme Court of Georgia:

Come now the plaintiffs-in-error, Rev. E. S. Evans,

Louis H. Wynn, Rev. J. L. Key, Rev. Booker W. Chambers,

William Randall, and Rev. Van J. Malone in the above-

styled case and pray that this Honorable Court add the fol-

lowing named persons as defendants-in-error: A. M. Ander-

son, Mrs. Dan O’Callaghan, Mrs. R. A. McCord, Jr., and

Mrs. W. E. Pendleton, Jr., and deny the defendants-in-

error’s motion to substitute these named defendants-in-

error in lieu of defendants-in-error Charles E. Newton,

Mrs. T. J. Stewart, Frank M. Willingham, Mrs. Francis K.

Hall, for the following reasons:

78

(fol. 126] The said motion filed in this Honorable Court

by defendants-in-error Charles E. Newton, Mrs. T. I.

Stewart, Frank M. Willingham, Mrs. Francis K. Hall,

George P. Rankin, Jr., Mrs. Frederick W. Williams and

Mrs. Kenneth W. Dunwoody shows that they submitted

their resignations as members of the Board of Managers of

Baconsfield. This joint resignation was submitted to Hugh

Comer, Lawton Miller, and B. L. Register, new trustees

of Baconsfield, on March 18, 1964. The said resignations

were accepted by the said Trustees on May 21, 1964. How.

ever, the appeal of this case to this Honorable Court by the

plaintiffs-in-error was docketed in this Honorable Court

on May 8, 1964. The said new trustees, having been notified

that the appeal was docketed, had no authority to accept

the resignation of the named defendants-in-error or to take

any other action affecting the status of the parties or

property involved in this case, pending a determination of

the issues involved in this case by this Honorable Court.

Therefore, plaintiffs-in-error submit that the attempted

resignation by the named defendants-in-error was null and

void.

Wherefore, plaintiffs-in-error pray that:

(1) A. M. Anderson, Mrs. R. A. McCord, Jr., Mrs. Dan

O’Callaghan, and Mrs. W. E. Pendleton, Jr., be made parties

defendants-in-error; and

(2) The defendants-in-error’s prayer that Charles E.

Newton, Mrs. T. J. Stewart, Mrs. Frederick W. Williams,

and Mrs. Kenneth W. Dunwoody be stricken as parties

defendant-in-error, be denied.

Donald L. Hollowell, William H. Alexander, 8594,

Hunter Street, Northwest, Atlanta, Georgia.

Jack Greenberg, James M. Nabrit, III, 10 Columbus

Circle, New York, New York 10019, Attorneys for

Plaintiffs-in-Error.

(fol. 127] Certificate of Service (omitted in printing).

79

(fol. 128]

ORDER

The foregoing motion having been read and considered,

the same 1s allowed and ordered filed.

Wherefore, it is ordered and adjudged that A. M. Ander-

son, Mrs. Dan O’Callaghan, Mrs. R. A. McCord, Jr., and

Mrs. W. E. Pendleton, Jr. are made parties defendant-in-

error. Further, the motion of the defendants-in-error to

strike Charles KE. Newton, Mrs. T. J. Stewart, Mrs. Fred-

erick W. Williams, and Mrs. Kenneth W. Dunwoody, re-

ferred to in this motion, is denied.

This the day of June, 1964.

Justice, Supreme Court of

ih Georgia.

(fol. 129) [File endorsement omitted]

(fol. 130]

In THE SUPREME Court o¥ THE STATE OF GEORGIA

Docket No. 22534

E. S. Evans et al.,

Vv.

Cuartes E. Newton et al.

Orpen GranTinc SECOND Motion To AMEND THE

Bit or Exceptions, eTc.—September 25, 1964

Upon consideration of the second motion to amend the

bill of exceptions by KE. S. Evans et al., the designated plain-

tiffs in error in this case, filed in the Supreme Court on

May 18, 1964, so as to substitute the plaintiffs in error

designated in the said motion for those designated in the

bill of exceptions and to substitute the defendants in error

designated in the said motion for those designated in the

nears nanenaptennesiene

a

bill of exceptions, it is ordered that the said motion be

hereby granted.

80

Let a copy of this order be mailed to counsel for each

side.

[fol. 131]

In THE SupREME CouRT OF THE STATE oF Georgia

Docket No. 22534

E. S. Evans et al.,

v.

Cuarites E. Newron et al.

Orpen GrantTinc Motion sy CuHartes E. NEwTon Et x.

DEFENDANTS IN Error, ETC.—September 28, 1964

Upon consideration of the motion by Charles E. Newton

et al., defendants in error in this case, to make A. M. Ander-

son, Mrs. R. A. McCord, Mrs. Dan O’Callahan and Mrs.

W. E. Pendleton, Jr., parties defendant in error and to

strike Charles E. Newton, Mrs. T. J. Stewart, Mrs. Fred-

erick W. Williams and Mrs. Kenneth W. Dunwoody as par-

ties defendant in error, it is ordered that the said motion

be granted in so far as it names additional parties defen-

dant in error and is denied in so far as it seeks to strike

parties defendant in error.

Let a certified copy of this order be mailed to counsel

for each side.

81

{fol. 132] :

Ix THE SUPREME CourT OF THE STaTE OF GEORGIA

Docket No. 22534

Evans et al.,

v.

Newton et al.

The record does not support the contentions of the plain-

tiffs in error, and the judge could not properly have gone

beyond the judgment rendered. The judgment is not shown

to be erroneous for any of the reasons urged by counsel

for the plaintiffs in error.

- Argued June 8, 1964

Decided September 28, 1964

Rehearing denied October 8, 1964.

Equitable petition. Bibb Superior Court. Before Judge

Long.

[fol. 133]

Orinion—September 28, 1964

The will of A. O. Bacon (which was probated in solemn

form) in Item Nine gave in trust described property, to be

known as “Baconsfield,” to named trustees for the benefit of

his wife and two named daughters for their joint use, bene-

fit, and enjoyment during the term of their natural lives.

It was provided that upon the death of the last survivor,

the property, including all remainders and reversions, “shai:

thereupon vest in and belong to the Mayor and Council of

the City of Macon, and to their successors forever, in trust

for the sole, perpetual and unending, use, benefit and en-

joyment of the white women, white girls, white boys and

white children of the City of Macon to be by them forever

82

used and enjoyed as a park and pleasure ground, subject

to the restrictions, government, management, rules and cop.

trol” of a board of managers consisting of seven persons,

not less than four to be white women and all seven to be

white persons. In order to provide for the maintenance of

the park, income from described real property and bonds

was to be expended by the board of managers.

Charles E. Newton and others, as members of the Board

(fol. 134] of Managers of Baconsfield, brought an equitable

petition against the City of Macon (in its capacity as trus-

tee under Item Nine of the will of A. O. Bacon), and Guyton

G. Abney and others, as successor trustees under the will

holding assets for the benefit of certain residuary beneficiar.

ies. It was alleged: The city as trustee holds the legal

title to a tract of land in Macon, Bibb County, known as

Baconsfield, under Item Nine of the will of A. O. Bacon.

As directed in the will, the board through the years has

confined the exclusive use of Baconsfield to those persons

designated in the will. The city is now failing and refusing

to enforce the provisions of the will with respect to the

exclusive use of Baconsfield. Such conduct on the part of

the city constitutes such a violation of trust as to require

its removal as trustee. It was prayed that: the city be re-

moved as a trustee under the will; the court eater a decree

appointing one or more freeholders, residents of the city, to

serve as trustee or trustees under the will; legal title to

Baconsfield and any other assets held by the city as trus-

tee be decreed to be in the trustee or trustees so appointed

(fol. 135] for the uses originally declared by the testator;

and for further relief.

The City of Macon filed its answer asserting that it can

not legally enforce racial segregation of the property known

as Baconsfield, and therefore it is unable to comply with

the specific intention of the testator with regard to main-

taining the property for the exclusive use, benefit, and en-

joyment of the white women, white girls, white boys, and

white children of the city. The city prayed that the court

construe the will and enter a decree setting forth the duties

and obligations of the city in the premises. The other

83

defendants admitted the all gations of the petition and

prayed that the city be removed as a trustee. The peti-

tioners thereafter filed a motion for summary judgment.

Reverend Kk. S. Evans and others, alleging themselves

to be Negro residents of the City of Macon, on behalf of

themselves and other Negroes similarly situated, filed an

intervention in the cause and asserted: The restriction and

limitation reserving the use and enjoyment of Baconsfield

(fol. 136] Park to “white women, white girls, white boys

and white children of the City of Macon,” is violative of the

public policy of the United States of America and violative

of the Constitution and laws of the State of Georgia. The

court as an agency of the State of Georgia can not, con-

sistently with the equal protection clause of the Four-

teenth Amendment of the Constitution of the United States

and the equivalent provision of the Constitution of the

State of Georgia, ev ter an order appointing private citizens

as trustees for ‘he manifest purpose of operating, man-

aging, and regulating public property (which passed to the

City of Macon under charitable trust created by will) in a

racially discriminatory manner. Although the charitable

device at the time of its creation was capable of being exe-

cuted in the exact manner provided by the will, by opera-

tion of law it is no longer capable of further execution

in the exact manner provided for by the testator. The court

should effectuate the general charitable purpose of the

testator to establish and endow a public park by refusing

to appoint private persons as trustees.

By amendment to the petition it was alleged: By the

(fol. 137] will of A. O. Bacon a trust was established for

his heirs. The trust has been executed as to four of his

seven heirs now living, A. O. B. Sparks, Willis B. Sparks,

Jr, Virginia Lamar Sparks, and M. Garten Sparks. The

interests of three remaining heirs, Louise Curry Williams,

Shirley Curry Cheatham, and Manley Lamar Curry, are

still held under an executed trust by four trustees holding

under the authority of the will, these trustees being Guyton

Abney, J. D. Crump, T. |. Denmark, and Dr. W. G. Lee.

These seven persons have an interest in the litigation since,

enw anise snetiee 20

84

if the trust purpose expressed in the will with respect to

the designation of persons who may use Baconsfield should

fail, the property comprising Baconsfield, together with the

property providing the upkeep of Baconsfield, will revert

to the estate of A. O. Bacon and be distributed to these

heirs. The amendment prayed that the Sparks heirs be al.

lowed to intervene and that the trustees be allowed to

assert the interests of the other heirs. It was also prayed

that the Negro intervenors and other members of the Negro

race resident in Macon be permanently enjoined from enter.

(fol. 138] ing and using the facilities of Baconsfield. The

Sparks heirs and the trustees of the other heirs of A. 0,

Bacon filed an intervention praying that the relief sought

by the original petitioners be granted, but that if such relief

not be granted, the property revert to them.

The City of Macon filed an amendment to its answer,

alleging that pursuant to resolution adopted by the Mayor

and Council of the city at its regular meeting on February

4, 1964, the city has resigned as trustee under the will of

A. O. Bacon. It prayed that the resignation be accepted by

the court.

The Negro intervenors filed an amendment to their inter-

vention in which they asserted: The equal protection clause

of the Fourteenth Amendment to the United States Con-

stitution prohibits the court from enjoining Negroes from

the use of the park, and from accepting the resignation of

the City of Macon as trustee and appointing new trustees

for the purpose of enjoining (enforcing?) the racially dis-

criminatory provision in the will of A. O. Bacon. Code

§ 69-504 prescribes racial discrimination and is therefore

{fol. 139] violative of the equal protection clause of the

Fourteenth Amendment to the United States Constitution.

Since the racially discriminatory provision in the will was

dictated by that unconstitutional statute, enforcement of

the racially discriminatory provision is constitutionally pro-

hibited. Code § 108-202, properly construed, requires that

the racially discriminatory provision in the will be declared

null and void. The intervenors prayed that the court with-

hold approval of the attempted resignation of the city as

trustee under the will, direc, the city to continue to ad-

minister the park ona racially nondiscriminatory basis,

and deny the injunction sought by the petitioners to exclude

Negroes from the use of the park.

On March 10, 1964, the judge of the superior court

entered an order and deeree in the case which adjudged as

follows: (1) The intervenors named are proper parties in

the case and are proper representatives of the class which

their intervention states that they represent, the Negro

citizens of Bibb County and the City of Macon. (2) The de-

fendants, Guyton G. Abney, J. D. Crump, T. I. Denmark,

(fol. 140] and Dr. W. G. Lec, as successor trustees under

the will of A. O. Bacon, and intervenors A. O. B. Sparks,

Willis B. Sparks, Jr., Virginia Lamar Sparks and M.

Garten Sparks are also proper parties. (3) The City of

Macon having submitted its resignation as the trustee of the

property known as Baconsfield, the resignation is accepted

by the court. (4) Hugh M. Comer, Lawton Miller, and B. L.

Register are appointed as trustees to serve in lieu of the

City of Macon. (5) The court retains jurisdiction for the

purpose of appointing other trustees that may be necessary

inthe future. (6) It is unnecessary to pass upon the second-

ary contention of the intervenors Guyton G. Abney and

others.

Reverend KE. S. Evans and others in their writ of error

to this court assign error on this order of the trial judge.

Their contentions will appear from the opinion.

Donald L. Hollowell, William H. Alexander, Jack Green-

berg, James M. Nabrit, III, for plaintiff in error.

Jones, Sparks, Benton & Cork, Trammell F. Shi, contra.

85

(fol. 141] ALManv, J ustice. Counsel for the plaintiffs in

error (the Negro intervenors) assert that the decree of the

judge of the superior court was “patent enforcement of

racial discrimination contrary to the equal protection clause

of the Fourteenth Amendment” to the Federal Constitution.

The decree did not enforce, or purport to enforce, any judg-

ment, ruling, or decree as related to the intervenors. After

determining that all parties were properly before the court,

the decree did two things: (1) Accepted the resignation of

the City of Macon as trustee of Baconsfield; and (2) ap.

pointed new trustees.

“The law of charities is fully adopted in Georgia...”

Jones v. Habersham, 107 U.S. 174 (5) (2 SC 336, 27 LE 401).

Under the law of this State any person may, by will, grant,

gift, deed, or other instrument, give or devise property

for any charitable purpose. Ga. L. 1937, p. 593 (Code Ann.

§ 108-207). Any public convenience might be a proper sub-

ject for a charitable trust. Code § 108-203. A charity once

established is always subject to supervision and direction

by a court of equity to render effectual its purpose. Code

§ 108-204. It is the rule that a charitable trust shall never

fail for the want of a trustee. Code § 108-302.

Whether the will of A. O. Bacon, establishing a trust

(fol. 142] for the operation of Baconsfield, contemplated by

the language, “to the Mayor and Council of the City of

Macon and to their successors” (italics ours), that the

named trustee might resign, need not be determined. The

City of Macon did resign, and the judge of the superior

court was confronted with the commandment of Code 4 108-

302 that a trust shall never fail for the want of a trustee.

Being empowered to appoint trustees when a vacancy occurs

for any cause, Thompson v. Hale, 123 Ga. 305 (51 SE 383),

Harris v. Brown, 124 Ga. 310 (2) (52 SE 610, 2 LRA (NS)

828), Woodbery v. Atlas Realty Co., 148 Ga. 712 (98 GE

472), Sparks v. Ridley, 150 Ga. 210 (3) (103 SE 425), the

judge exercised such power and appointed successor trus-

tees.

The contention by counsel for the plaintiffs in error that

Code § 69-504 required A. O. Bacon to limit the use of

Baconsfield to the members of one race can not be sus-

tained. Code § 69-504, in providing for gifts limited to mem-

bers of a race, simply states that any person may “devise,

give, etc.” The law of Georgia does not by Code § 69-504,

nor by any other statutory provision, require that any

testator shall limit his beneficence to any particular race,

class, color, or creed. Such limitation, however, standing

alone, is not invalid, and this court has sustained a testa-

{fol. 143] mentary charity naming trustees for establish-

ing and maintaining “a home for indigent colored people 60

}

— —

87

years of age or older rexiding in Augusta, Georgia.”

Strother V. Kennedy, 218 Gia. 180 (127 SE2d 19). A. O.

Bacon had the absolute right to give and bequeath property

to a limited class.

Counsel for the plaintiffs in error assert that: “As the

City was unable to comply with the racially discriminatory

direction of the trust, three alternatives were open to the

jower court: (1) declare the racially discriminatory provi-

sion null and void; (2) remove the trustee (or accept its

resignation ) and appoint a non-governmental trustee; (3)

declare failure of the trust.” They insist that the judge

should have chosen the first alternative.

Counsel for plaintiffs in error assert that the court

should have applied the provisions of Code § 108-202 that

when a valid charitable bequest is incapable for some reason

of exact execution in the exact manner provided by the

testator a court of equity will carry it into effect in such

way as nearly as possible to effectuate his intention. The

answer to this contention is: the application of the cy-pres

rule, as provided in this Code section, was not invoked

(fol. 144] by the primary parties to this case, and even if it

be conceded (which we do not concede, see Smith v. Man-

ning, 155 Ga. 209, 116 SE 813, and Fountain v. Bryan, 176

Ga. 31, 166 SE 766) that the intervenors could raise such

issue, the facts before the trial judge were wholly insufficient

to invoke a ruling that the charitable bequest was or was not

incapable for some reason of exact execution in the exact

manner provided by the testator. There is no testimony in

the record of any nature or character, that the board of

managers provided by the will, can not operate the park

pursuant to the terms and conditions of the will.

Counsel for the plaintiffs in error cite Pennsylvanw v.

Board of Directors of City Trusts of the City of Philadel-

phia, 353 U.S. 230 (77 SC 806, 1 LE2d 792). In the Penn-

sylvania case the United States Supreme Court pointed

out that the board which operated Girard College was an

agency of the State of Pennsylvania by legislative act, and

that the refusal to admit Negroes to Girard College was

therefore discrimination by the State. Upon the return of

the case to the Supreme Court of Pennsylvania for further

proceedings not inconsistent with the opinion, that court

remanded the case to the Orphans’ Vourt for further pro-

(fol. 145] ceedings not inconsistent with the opinion of the

Supreme Court of the United States. The Supreme Court

of Pennsylvania, on the second appearance of the case (see

Girard College Trusteeship, 391 Pa. 434, 138 A2d 844),

stated that the Orphans’ Co

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