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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