Evans v. Abney Petition for a Writ of Certiorari to the Supreme Court of Georgia

    (Burnt n f  tip I n i t p i*  §>Ut?s
October Term, 1968 

No......... .

1 st t h e

R everend E. S. E vans, et al.,

v.
Petitioners,

Guyton G. A bney, et al.

PETITION FOR A WRIT OF CERTIORARI TO THE 
SUPREME COURT OF GEORGIA

W illiam H. A lexander
859% Hunter Street, N.W. 
Atlanta, Georgia 30314

J ack Greenberg 
J ames M. Nabrit, III 

10 Columbus Circle 
New York, New York 10019

Charles L. B lack, Jr.
169 Bishop Street
New Haven, Connecticut 06511

A nthony G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pennsylvania 19104

Attorneys for Petitioners



I N D E X

Opinions B elow ......................      2

Jurisdiction ...........    2

Questions Presented .......................    2

Statutes Involved....................      3

Statement of the Case ...........................   5

The Will ...........   9

The City of Macon Acquires Baconsfield—1920 .... 12

City Administration and Financial Aid to the 
Park and Federal Government Aid ...................  14

Baconsfield Clubhouse—Built by Federal Govern­
ment ............................................................................  18

Public Boads in the P a rk ..........................................  21

City-Built Swimming Pool and Bathhouses at 
Baconsfield ................................................................  21

City Operated Zoo .........................................   24

Public School Playground ......................................... 24

City Leased Building..................................................  25

City-Aided Recreation Facilities ............................. 25

Sale of Portion of Trust Property to State .......  26

Tax Exemption............................................................  26

PAGE



11

PAGE

Income Property................ ~............................-.........  26

Assets of the Estate ..................................................  27

How the Federal Questions Were Raised and Decided 28 

R easons fob Granting the W rit

I. The Importance of the Question in the Frame­
work of This Case ............................................. —- 32

A. The Decision of the Georgia Court Frustrates 
This Court’s Mandate in Evans v. Newton,
382 U.S. 296 (1966) ............................................  32

B. The Decision of the Georgia Court Is Incon­
sonant With Prior Decisions of This Court .... 33

C. Allowing the Georgia Court’s Decision to 
Stand Will Seem to Open a Fertile Field for
Implementing Racial Discrimination, and Will 
Therefore Encourage Schemes Aiming at 
Such Discrimination  ......... ........ .....................  34

II. The Decree of the Court Below Is Hostile to the 
Petitioners’ Right to Immunity From Racial 
Discrimination .....-.....................................................  35

A. The Decree of the Georgia Court Imposes the 
Drastic Penalty of Reverter on Compliance 
With the Fourteenth Amendment, and in so 
Doing Infringes Upon a Federal Interest De­
clared and Created by the Constitution, at the 
Same Time and by the Same Act Inflicting 
Detriment on the Petitioners and Encourag­
ing Racial Discrimination ............................... - 35



Ill

B. The Judgment That This Trust Has “Failed,” 
Though Its Intended Beneficiaries May Still 
Enjoy Its Benefits Just as Before, Can Best 
Logically Only on the Proposition That, as 
a Matter of Law, the Presence of Negroes 
Spoils a Park for Whites, an Impermissible 
Ground Under the Fourteenth Amendment.
The Rejection of the Cy Pres Alternative 
Must Rest on Similar Grounds ....................... 41

C. At Least Under the Highly Special Circum­
stances of This Case, the Provision for Ra­
cial Discrimination in Baconsfield Ought, as 
a Matter of Federal Law, Under the Four­
teenth Amendment, to Be Treated as Abso­
lutely Void. If This Is Correct, Then Federal 
Law Commands That This Trust Be Contin­
ued and That the City Continue as Trustee, 
for It Is Clear That Without the Racially 
Discriminatory Language Georgia Law Com­
pels That Result. Similarly, Federal Law 
Commands That a Public Park “ Dedicated” 
to the White Public Be “Dedicated” to the

PAGE

Negro Public as Well ....................................... 49

Conclusion ..............................................................................  58

A ppendix

Letter Opinion of Superior C ou rt..................................  la

Superior Court Order and Decree ..................................  7a

Opinion of Georgia Supreme Court ............................... 16a

Order of Georgia Supreme Court ...................................  25a



T a b l e  o f  C a s e s

page

Adams v. Bass, 18 Ga, 130 ............................................ 46, 47

Barrows v. Jackson, 346 U.8. 249 (1953) .............33,35,40
Brown v. Board of Education, 347 U.S. 483 (1954) ....51, 55 
Burton v. Wilmington Parking Authority, 365 U.S. 715 

(1961) ................................................................................ 41

Commonwealth of Pennsylvania v. Brown, 392 F.2d 
120 (3rd Cir. 1968), cert. den. 391 U.S. 921 (1968).... 53 

Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1867)....33, 35, 37

Erie R.R. v. Tompkins, 304 U.S. 69 (1938) ................... 39
Evans v. Newton, 382 U.S. 296 (1966) ...........2,5,7,32,37,

40, 54
Evans v. Newton, 220 Ga. 280, 138 S.E.2d 573 (1964).... 2
Evans v. Newton, 221 Ga. 870. 148 S.E.2d 329 (1966).... 2, 7

Ford v. Thomas, 111 Ga. 493 ..........................................  46

Griffin v. County School Board [of Prince Edward 
County], 377 U.S. 218 (1964) .................................... 33,51

Macon v. Franklin, 12 Ga. 239 ..........................................  53
Marsh v. Alabama, 326 U.S. 501 (1946) ...... ..................  52
McCulloch v. Maryland, 4 Wheat. 316 (1819) .......33, 35, 37

Pennsylvania v. Brown, 392 F.2d 120 (3rd Cir. 1968),
cert. den. 391 U.S. 921 (1968) ......................................  33

Plessy v. Ferguson, 163 U.S. 537 (1896) ..................... 51,55

Reitman v. Mulkey, 387 U.S. 369 (1967) ..............   33,36
Robinson v. Florida, 378 U.S. 153 (1964) ..... ...............  36

Shelley v. Kraemer, 334 U.S. 1 (1948) .........................33, 35
Strauder v. West Virginia, 100 U.S. 303 (1880) .... ...41,49



V

Sweet Briar Institute v. Button, 280 F. Supp. 312 
(W.D. Va. 1967), rev’d per curiam, 387 U.S. 423, 
decision on the merits, 280 F. Supp. 312 (1967) .......  53

A uthorities
Statutes

PAGE

28 U.S.C. §1257(3) ..............................................................  2

Georgia Code §69-504 (1933) (Acts 1905)....3-4, 49-50, 52, 53,
54, 55, 57

Georgia Code, §69-505 (1933) (Acts, 1905) .................... 4

Georgia Code, §108-106(4) ................................................  44

Georgia Code, §108-202 .........................................4,45,46,49

Georgia Code, §108-212......................................................  8

Georgia Code, §113-815 ...................................... 4-5, 45,46, 49



Ik t h e

(H m trt o f  %  I m i p f t

October Term, 1968 

No.................

R everend E. S. E vans, et al.,
Petitioners,

v.

Guyton G. A bney, et al.

PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF GEORGIA

Petitioners pray that a writ of certiorari issue to review 
the judgment of the Supreme Court of Georgia entered in 
the above-entitled case on December 5, 1968.1

1 Petitioners herein are Rev. E. S. Evans, Louis H. Wynn, Rev. 
J. L. Key, Rev. Booker W. Chambers, William Randall and Rev. 
Van J. Malone. The respondents, i.e., appellees in the court below, 
are Guyton G. Abney, J. D. Crump, T. I. Denmark, Dr. W. G. Lee, 
Successor Trustees under the Will of A. 0. Bacon; the City of 
Macon, Georgia; the Citizens and Southern National Bank and 
Willis B. Sparks, Jr., as Executors of the Will of A. 0. B. Sparks; 
Willis B. Sparks, Jr. and M. Garten Sparks, Virginia Lamar 
Sparks and M. Barton Sparks, Heirs at Law of A. 0. Bacon; 
Charles Newton, Mrs. T. J. Stewart, Frank M. Willingham, Mrs. 
Francis K. Hall, George P. Rankin, Jr., Mrs. Frederick W. Wil­
liams, Mrs. Kenneth Dunwoody, A. M. Anderson, Mrs. W. E. 
Pendleton, Jr., Mrs. R. A. McCord, Jr. and Mrs. Dan O’Callaghan, 
Members of the Board of Managers under the Will of A. 0. Bacon; 
Hugh M. Comer, Lawton Miller and B. L. Register, Successor 
Trustees in lieu of the City of Macon.



2

Opinions Below

The letter opinion of the Judge of the Superior Court of 
Bibb County dated December 1, 1967, and filed May 14,1968 
(Appendix p. la, infra, R. 1007-1012) is unreported. The 
opinion of the Supreme Court of Georgia filed December 5, 
1968, is reported at 165 S.E.2d 160 (Appendix p. 16a, infra-, 
R. 1112-1126). Earlier proceedings in this same case are 
reported sub nom. Evans v. Newton, 220 Ga. 280, 138 S.E.2d 
573 (1964), reversed 382 U.S. 296 (1966), on remand, 221 
Ga. 870, 148 S.E.2d 329 (1966).

Jurisdiction

The judgment of the Supreme Court of the State of 
Georgia was entered on December 5, 1968 (R. 1127; Ap­
pendix p. 26a, infra). The jurisdiction of this Court is 
invoked under 28 U.S.C. §1257(3), the petitioners having 
claimed the violation of their rights under the Constitution 
of the United States.

Questions Presented

1. Whether, in the absence of any reversionary clause in 
the will leaving property in trust as a park, the imposition 
by the Georgia court of a reversion to the heirs on a show­
ing that Negroes have used, and must be allowed to use the 
park, constitutes an infringement by state power on a 
federal interest declared and created by the Constitution, 
both by its immediate penalization of compliance with the 
Fourteenth Amendment, and by its operation to discourage 
desegregation. 2

2. Whether the holdings by the state court that this 
trust has “ failed” and that cy pres cannot apply, rest on a



3

ground impermissible under the Fourteenth Amendment— 
the ground that the presence of Negroes frustrates the en­
joyment of the park by whites, even though the latter, the 
intended beneficiaries, may use the park as freely as ever.

3. Whether the racially exclusory language in Senator 
Bacon’s will must as a matter of federal law be treated as 
null and void, both because the provisions were meant to 
form and did actually form a part of the public law material 
by which the City conducted its parks, and because federal 
law, in commanding equality between the races, commanded 
and by operation of law brought it about that this park, 
since it was “dedicated in perpetuity” to whites, must also 
be taken to be “dedicated in perpetuity” to Negroes.

Statutes Involved

1. This case involves the Fourteenth Amendment to the 
Constitution of the United States.

2. This case involves the following Georgia statutes: 

a. Georgia Code Section 69-504:

Ga. Code §69-504 (1933) (Acts, 1905, p. 117):

Gifts for public parks or pleasure grounds.—Any 
person may, by appropriate conveyance, devise, give, 
or grant to any municipal corporation of this State, in 
fee simple or in trust, or to other persons as trustees, 
lands by said conveyance dedicated in perpetuity to 
the public use as a park, pleasure ground, or for other 
public purpose, and in said conveyance, 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,



4

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, im­
provement, and maintenance of said property.

h. Georgia Code Section 69-505:

Ga. Code §69-505 (1933) (Acts, 1905, pp. 117, 118):

Municipality authorized to accept.—Any municipal 
corporation, or other persons natural or artificial, as 
trustees, to whom such devise, gift, or grant is made, 
may accept the same in behalf of and for the benefit 
of the class of persons named in the conveyance, and 
for their exclusive use and enjoyment; with the right 
to the municipality or trustees to improve, embellish, 
and ornament the land so granted as a public park, 
or for other public use as herein specified, and every 
municipal corporation to which such conveyance shall 
he made shall have power, by appropriate police 
provision, to protect the class of persons for whose 
benefit the devise or grant is made, in the exclusive 
used (sic) and enjoyment thereof.

c. Georgia Code Section 108-202:

Cy pres.—When a valid charitable bequest is in­
capable for some reason of execution in the exact man­
ner 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.

d. Georgia Code Section 113-815:

Charitable devise or bequest. Cy pres doctrine, ap­
plication of.—A devise or bequest to a charitable use



5

will be sustained and carried out in this State; and in 
all cases where there is a general intention manifested 
by the testator to effect a certain purpose, and the 
particular mode in which he directs it to be done shall 
fail from any cause, a court of chancery may, by ap­
proximation, effectuate the purpose in a manner most 
similar to that indicated by the testator.

Statement of the Case

Petitioners are Negro citizens in Macon, Georgia who 
have sought in this extended litigation to desegregate 
Baconsfield Park, a previously all-white municipal park 
left to the City of Macon by the will of the late United 
States Senator Augustus Octavius Bacon. The case was 
reviewed by this Court once before in Evans v. Neivton, 
382 U.S. 296 (1966). The present petition seeks a review 
of a ruling by the Georgia courts that as a consequence of 
this Court’s holding that the Fourteenth Amendment for­
bids the exclusion of Negro citizens from the park, Bacon’s 
trust fails and the park and other trust property is forfeited 
by the City and reverts to the heirs of Senator Bacon.

The early course of the lawsuit, which was begun in the 
Superior Court of Bibb County, Georgia on May 4, 1963, 
is briefly summarized in the following excerpt from the 
opinion by Mr. Justice Douglas for the Court, Evans v. 
Newton, 382 U.S. 296, 297-298:

In 1911 United States Senator Augustus 0. Bacon 
executed a will that devised to the Mayor and Council 
of the City of Macon, Georgia, a tract of land which, 
after the death of the Senator’s wife and daughters, was 
to be used as “a park and pleasure ground” for white 
people only, the Senator stating in the will that while 
he had only the kindest feeling for the Negroes he was



6

of the opinion that “ in their social relations the two 
races (white and negro) should be forever separate.” 
The will provided that the park should be under the con­
trol of a Board of Managers of seven persons, all of 
whom were to be white. The city kept the park segre­
gated for some years but in time let Negroes use it, 
taking the position that the park was a public facility 
which it could not constitutionally manage and maintain 
on a segregated basis.

Thereupon, individual members of the Board of Man­
agers of the Park brought this suit in a state court 
against the City of Macon and the trustees of certain 
residuary beneficiaries of Senator Bacon’s estate, ask­
ing that the city be removed as trustee and that the 
court appoint new trustees, to whom title to the park 
would be transferred. The city answered, alleging it 
could not legally enforce racial segregation in the park. 
The other defendants admitted the allegation and re­
quested that the city be removed as trustee.

Several Negro citizens of Macon intervened, alleging 
that the racial limitation was contrary to the laws and 
public policy of the United States, and asking that the 
court refuse to appoint private trustees. Thereafter 
the city resigned as trustee and amended its answer 
accordingly. Moreover, other heirs of Senator Bacon 
intervened and they and the defendants other than the 
city asked for reversion of the trust property to the 
Bacon estate in the event that the prayer of the peti­
tion were denied.

The Georgia court accepted the resignation of the 
city as trustee and appointed three individuals as new 
trustees, finding it unnecessary to pass on the other 
claims of the heirs. On appeal by the Negro inter- 
venors, the Supreme Court of Georgia affirmed, hold­
ing that Senator Bacon had the right to give and be­



7

queath his property to a limited class, that charitable 
trusts are subject to supervision of a court of equity, 
and that the power to appoint new trustees so that the 
purpose of the trust would not fail was clear. 220 Ga. 
280, 138 S. E. 2d 573.

This Court, in reversing the judgment of the Georgia 
Supreme Court, ruled that the park was “ a public institu­
tion subject to the command of the Fourteenth Amendment, 
regardless of who now has title under state law” (382 U.S. 
at 302).

Immediately after this Court’s decision, the Supreme 
Court of Georgia delivered a second opinion setting forth 
the view that the purpose for which the Baconsfield Trust 
was created had become impossible to accomplish and had 
terminated. Evans v. Newton, 221 Ga. 870, 148 S.E.2d 329 
(1966). However, the judgment did not direct that the 
Superior Court on remand enter any particular order, but 
merely ruled that the court should pass on contentions of 
the parties not previously decided, and said that the “judg­
ment of the Supreme Court of the United States is made 
the judgment of this Court” (148 S.E.2d at 331).

On remand in the Superior Court of Bibb County, a Mo­
tion for Summary Judgment (R. 136-141) (which was sub­
sequently amended and supplemented by three additional 
pleadings (R. 622; 930; 939) was filed by Guyton G. Abney, 
et al. as Successor Trustees under the Last Will and Testa­
ment of Senator Augustus Octavius Bacon. The motion 
asked that the court rule that Senator Bacon’s trust had 
become unenforceable, and that the Baconsfield property 
had reverted to movants as successor trustees under Item 
6th of Bacon’s will, and to certain named heirs of Senator 
Bacon (R. 141). The motion was opposed by petitioners, 
Rev. E. S. Evans, et al., the Negro citizens of Macon who



8

had earlier intervened seeking the racially nondiscrimina- 
tory operation of Baconsfield Park, by the filing of a re­
sponse (R. 157-160) and four supplemental responses to 
the summary judgment motion (R. 371-374, 695-706, 917- 
918, 971). Petitioners filed numerous exhibits, as well as 
depositions, affidavits, answers to interrogatories and 
stipulations setting forth additional facts. Petitioners ob­
jected on federal constitutional grounds based on the due 
process and equal protection clauses of the Fourteenth 
Amendment, as well as on state law grounds, to the relief 
sought by the successor trustees and heirs. The heirs also 
filed several affidavits and exhibits supplementing the fac­
tual record. None of the other parties to the case, including 
the City of Macon, the Trustees of Baconsfield named by 
the court’s order of March 10, 1964, or the members of the 
Board of Managers of Baconsfield (who initiated this law­
suit) either opposed the granting of the relief requested in 
the Motion for Summary Judgment, or offered any evidence. 
The court heard oral arguments on June 29, 1967, and 
granted the parties time to file further documentary evi­
dence, which was filed.

At the hearing the petitioners, Evans, et al., suggested 
that the Attorney General of Georgia should be made a 
party to the case. By order dated July 21, 1967, the Attor­
ney General was made a party pursuant to Georgia Code 
Section 108-212 (Acts 1952, pp. 121, 122; 1962, p. 527). The 
Attorney General of Georgia filed a “Response” opposing 
the relief requested by the heirs and supporting the posi­
tion of the intervenors E. S. Evans, et al. that the doctrine 
of cy pres should be applied to save the trust (R. 975-988).

The Superior Court, granted the relief requested in the 
successor trustees’ and heirs’ Motion for Summary Judg­
ment, ruling that the trust established by Senator Bacon 
failed immediately upon this Court’s ruling in January



9

1966, that the City of Macon was dismissed from the case, 
and that the trust assets reverted to the successor trustees 
and heirs (E. 999-1006). In addition, the court ruled that 
the doctrine of cy pres was not applicable, that there was 
no dedication to the public, that the heirs were not estopped 
and that no federal constitutional rights of intervenors 
were violated by the reversion of the trust assets (id.). The 
Superior Court order and decree was entered May 14, 1968 
(id.).

Petitioners duly appealed to the Supreme Court of 
Georgia, which filed an opinion December 5, 1968, affirming 
the decree of the Bibb Superior Court, and rejected peti­
tioners’ federal constitutional claims (R. 1112-1126). The 
court below stayed its remittitur and further proceedings 
pending the disposition of a timely petition for certiorari 
in this Court (R. 1130).

While the record filed with this ease includes the entire 
record of proceedings before this Court on the prior peti­
tion, it also includes a good deal of additional factual data 
and evidence presented to the Superior Court on remand. 
The evidence develops the history of Baconsfield Park, and 
shows in great detail the substantial governmental invest­
ment, including the expenditure of both city and federal 
government funds, in establishing, improving and maintain­
ing Baconsfield Park.

The Will

Senator A. 0. Bacon provided in Item 9th of his Will 
(R. 16-34), signed in 1911 and probated in 1914, for the 
disposition of his farm called Baconsfield. He left the prop­
erty in trust for the use of his wife and daughters during 
their lives (R. 22-23) and provided that after their deaths:

. . .  it is my will that all right, title and interest in 
and to said property hereinbefore described and



10

bounded, both legal and equitable, including all re­
mainders 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 children of 
the City of Macon to be by them forever used and en­
joyed as a park and pleasure ground, subject to the 
restrictions, government, management, rules and con­
trol of the Board of Managers hereinafter provided 
for: the said property under no circumstances, or by 
any authority whatsoever, 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. (R. 23)

The will provided for a seven member all-white Board of 
Managers to be chosen by the Mayor and Council of Macon 
(R. 23) and for the Board to have power to regulate the 
park, including discretion to admit men (R. 24). Senator 
Bacon directed that a portion of the property be used to 
gain income for the upkeep of the park (R. 24). He directed 
that “ in no event and under no circumstances” should either 
the park property or the income-producing area be sold or 
otherwise alienated, and specified that except for the desig­
nated income-producing area the property “ shall forever, 
and in perpetuity be held for the sole uses, benefits and 
enjoyments as herein directed and specified” (R. 24). The 
will stated Senator Bacon’s belief that Negroes and whites 
should have separate recreation grounds (R. 25). It also 
stated his wish that the property be “preserved forever for 
the uses and purposes” indicated in the will, and that it be 
perpetually known as “Baconsfield” (R. 25). It provided 
that the trustees had no power to sell or dispose of the prop­



11

erty “under any circumstances and upon any account what­
soever, and all such power to make such sale or alienation 
is hereby expressly denied to them, and to all others” 
(R. 26).

Item 10th of Senator Bacon’s will bequeathed bonds, 
valued at $10,000, to the City of Macon with directions that 
the income be used for the preservation, maintenance and 
improvement of Baconsfield (R. 26). The will said that if 
the City was without legal power under the city charter to 
hold the funds in trust, the City should select a successor 
trustee (E. 27). Bacon gave a similar direction for the 
City to select a successor trustee “ 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 . . .”  (R. 27-28).

In a 1913 codicil, Senator Bacon noted that one of his 
daughters, Mrs. Augusta Curry, had predeceased him, and 
provided that her children should stand in her place in the 
disposition of the property, except that with respect to 
Baconsfield their interest would cease upon the death of 
his wife and his other daughter (E. 32-33). Item 3rd of 
the codicil provided, inter alia:

To prevent possibility of misconstruction I hereby pre­
scribe 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 (E. 33).

In Item 4th of the codicil, it was provided that Custis 
Nottingham, one of the trustees and executors under the 
will, and his family, could occupy a house on Baconsfield



12

rent-free until the full expiration of the trust for which he 
was appointed (R. 33).

The City of Macon Acquires Baconsfield— 1920

The City of Macon obtained possession of Baconsfield in 
February 1920, many years before the death of Senator 
Bacon’s surviving daughter, by virtue of an agreement 
between the City and the trustees under the will, which was 
entered into with the written assent of all of Senator 
Bacon’s heirs. The agreement is set forth in the Macon 
City Council Minutes of February 3, 1920 (Intervenors’ 
Exhibit 0 ;  R. 710-712). Under the agreement between the 
City and the trustees, which recites that it was executed with 
the signed assent of all legatees and beneficiaries of the 
Bacon estate, the trustees conveyed Baconsfield to the City 
by deed, and also conveyed to the City to be covered into 
the City treasury the bonds and accumulated interest be­
queathed by Item 10th of the will (Id.). The deed of Bacons­
field to the City appears in the record as Intervenors’ Ex­
hibit F ; it was executed February 4, 1920, and recorded 
February 10, 1920 (R. 650-652). In the agreement the City 
agreed to pay the trustees the sum of $1,665 annually dur­
ing the life of Senator Bacon’s daughter, Mrs. Sparks 
(R. 710-711). The City also agreed that it would appropri­
ate 5% of the sum of the value of the bonds and accumulated 
interest each year, or $650 annually, for the improvement 
of Baconsfield Park (Id.). The City agreed not to charge 
any taxes or other assessments of any kind against the 
property (Id.). At the same time the City agreed with 
Custis Nottingham that he would terminate his occupancy 
of a house in Baconsfield in consideration of a cash payment 
of $5,100 from the City of Macon (Exhibit O R. 710). 
Nottingham’s Quit Claim Deed to the City is Intervenors’ 
Exhibit G (R. 653-654).



13

The City of Macon paid $5,100 to Custis Nottingham in 
consideration of his deed of his interest in Baconsfield 
(E. 711). The City of Macon paid the trustees under the 
will an annuity each year during the life of Mrs. Mary 
Louise Bacon Sparks. The Baconsfield annuity payments of 
$1,665 per year were regularly included in the Macon City 
budgets. (See, for example, budgets for the years 1939 and 
1940, Intervenors’ Exhibits T and U; E. 721, 722). Mrs. 
Sparks lived until May 31, 1944 (Intervenors’ Exhibit W ; 
E. 919). Accordingly, there were 25 payments of $1,665 
from February 1920 through February 1944, and the City 
of Macon thus paid a total of $41,625 to the trustees under 
Bacon’s will in order to acquire Baconsfield.

The Macon City Council Minutes of February 17, 1920 
(Intervenors’ Exhibit P ; E. 713-714), reflect the fact that 
the City had taken over Baconsfield Park; that the council 
elected the first Board of Managers; that the Mayor of 
Macon, G. Glenn Toole, was elected to the Board of Mana­
gers; and that this election of the Mayor was requested 
by the trustees under Bacon’s will, Messrs. Jordan and 
Nottingham, who wrote a letter to the Mayor stating:

In turning over to the City of Macon the park devised 
to it by Senator Bacon, permit us to express the hope 
that this Park will mean all to the white citizens of 
Macon that Senator Bacon wished it to mean.

The place is one of great natural beauty, but it could 
easily be marred by haphazard work. We are sure 
that before anything material is done to this property 
that you, the City Council, and the Commission ap­
pointed by it will have a well defined and permanent 
plan of improvement in view.

We believe that it is of the utmost importance that 
you be a member of this Commission, and wish here 
to voice the hope that you will not decline such service



14

from any false modesty. It will greatly expedite the 
people’s enjoyment of this property if the Commission 
is headed by the head of our City Government. Dif­
ferences in opinion and change of plans will be thus 
avoided, and the money essential to the improvement 
of this property will he expended by the one charged 
with raising it. (E. 713-714; emphasis added).

Mr. Toole, who was Mayor of Macon from 1918-1921 and 
from 1929-1933 (Heirs and Trustees Exhibit E ; R. 931), 
remained a member of the Board of Managers until 1945. 
(Intervenors’ Exhibit B, Baconsfield Minutes of May 30, 
1945, and November 1, 1945; R. 557, 560, 563-564).

City Administration and Financial Aid to the Park 
and Federal Government Aid

Mr. T. Cleveland James was Superintendent of Parks of 
the City of Macon from 1915 to the time of his Deposition 
in April 1967 (R. 285-286). He developed most of Macon’s 
parks, including Baconsfield and exercised general super­
vision over Baconsfield for many years. He testified that 
Baconsfield was a “wilderness” with “undergrowth every­
where” and no facilities at the time the Mayor directed him 
to take charge of the park (R. 278; 307). Supt. James ini­
tially developed Baconsfield Park using workmen who were 
paid by the federal Works Progress Administration, an 
agency of the United States. The W.P.A. men were working 
at Baconsfield under his supervision for a period he esti­
mated as a year or more (R. 283, 307). The federally paid 
workmen cleared the underbrush, cleared foot paths, built 
footbridges, dug ponds, built benches, planted trees and 
flowers and generally performed landscaping work in 
Baconsfield Park (R. 278-284, 287). The WhP.A. workers 
did similar work in other city parks under the supervision 
of the City Park Superintendent (R. 298). Mr. James’



15

testimony is supplemented and corroborated by W.P.A. rec­
ords from the archives of the United States (Intervenors’ 
Exhibit E ; R. 595-649) which reflect that Works Progress 
Administration Work Project No. 244 involved landscaping 
city parks in Macon, Georgia under the supervision of the 
City Park Superintendent. The W.P.A. records indicate 
that W.P.A. Project No. 244 was approved August 7, 1935; 
that the federal government paid $120,032.35 for 469.079 
man hours of work; and that the sponsor (City of Macon) 
paid $17,923.43 for work on the project (R. 599), The 
W.P.A. records do not indicate how much of the labor was 
at Baconsfield and how much was at other city parks. But, 
Mr. James’ testimony indicates that W.P.A. work at Bacons­
field was very extensive (R. 307):

Q. Will you describe for us very briefly what you meant 
when you said Baconsfield Park was a wilderness 
when you first went out there?

A. Well, there wasn’t nothing there but just undergrowth 
everywhere, one road through there and that’s all, one 
paved road.

Q. And no facilities out there; is that correct?
A. No.
Q. And how long did it take you to turn it into a usable 

park?
A. Oh, about 6 or 8 months, probably a year.
Q. I see, and you used employees fairly regularly during 

all of that year?
A. Yes.
Q. Every day?
A. Well, wTe had the PW A labor, trying to get me to give 

them something to do, you know, and I worked them 
over there.

Q. You say you used the PW A employees for maybe a 
year?

A. I expect I did, yes, that is what I did my work with.



16

The minutes of the Baconsfield Board of Managers meet­
ing held March 30, 1936 (Intervenors’ Exhibit B ; R. 507- 
509), indicate that considerable development, landscaping 
and planting had been done in the park during the preced­
ing 12 months. No earlier minutes of the Board are avail­
able (R. 507). However, the Board minutes indicate an 
extensive pattern of governmental involvement in the 
maintenance of the park from 1936 until the City resigned 
as trustee of the park in 1964. (The minutes from 1936- 
1945 are Exhibit B, R. 506-565. The minutes from 1945-1967 
are Exhibit A, R. 376-505). The City’s involvement in the 
operation of the park was manifested in a great number of 
ways. For example, for a twelve year period from 1936 to 
1948, all but one of twenty-one meetings of the Board of 
Managers of Baconsfield took place in the Mayor’s office or 
elsewhere in Macon’s City Hall. During the same period 
the Mayor of Macon attended 16 of the 21 meetings. (See, 
generally, Intervenors’ Exhibits A and B supra). The min­
utes reflect that over an extended period of years the Board 
of Managers frequently requested and obtained assistance 
from the City of Macon in developing and improving the 
park. On occasion the minutes of the Board of Managers 
refer to Baconsfield variously as a “municipal park” (Inter­
venors’ Exhibit A, Minutes of 5/6/53; R. 403) and to 
“ Baconsfield and the other public parks of the City of 
Macon” (Intervenors’ Exhibit A, resolution following min­
utes of 11/1/45; R. 564).

The deposition of Park Superintendent James and the 
Board of Managers’ minutes indicate positively and con­
clusively that Baconsfield Park was maintained and oper­
ated as an integral part of the City park system from the 
time the park was first developed until the City resigned 
as trustee in 1964. Park department employees under Mr. 
James’ supervision maintained Baconsfield just as they did 
all of the other city parks (R. 276, 289-290, 306). Mr. James



17

estimated that the City spent about $5,000 for flowers and 
plants in Baconsfield during the years he worked there, 
and additional amounts were spent by the Board of Mana­
gers for gardening supplies (R. 295-296). In 1938, the 
United States government gave to the park 144 bamboo 
plants, representing six different varieties of bamboo (In- 
tervenors’ Exhibit B, Minutes of 6/28/38; R. 525). Mr. 
James regularly assigned men from the city Park Depart­
ment to work in Baconsfield as the need arose (R. 276). 
City workers did all the general maintenance work in the 
park until 1964 (R. 278). For a period of years, Mr. James, 
the City Superintendent of Parks, lived in Baconsfield 
Park, occupying a home rent free. (Minutes of 10/16/47; 
Exhibit A ; R. 391). The substantial value of the city’s con­
tribution of labor for upkeep of the park is demonstrated 
by the increase in the board’s maintenance expenditures 
after the City resigned as trustee of the park in 1964 
(R. 332-333). The amounts spent by the Board of Managers 
for maintenance in the years 1960-1966 were as follows:

1960 — $1,307.20
1961 — $1,645.72
1962 —  $1,995.57
1963 — $1,465.20
1964 — $6,545.78
1965 — $7,073.80
1966 — $6,675.89

(Board of Managers’ Answer to Interrogatory No. 9; R. 
174.) The Chairman of the Board of Managers agreed that 
the cost increase in 1964 and thereafter was attributable to 
the fact that the City withdrew its services, and it became 
necessary for the board to pay for services which had pre­
viously been furnished by the City Parks Department 
(R. 332-333). The Mayor of Macon testified that he ordered 
all city employees to stop working at Baconsfield after the 
City resigned as trustee in 1964.



18

Bacons field Clubhouse— Built by Federal Government

There is a two story brick building known as the Bacons- 
field Clubhouse located in the park. The clubhouse was built 
in 1939 by the Works Progress Administration (W.P.A.), 
an agency of the United States (Interveners’ Exhibits J 
(E. 708-709), K  (R. 724-841), L (R. 842-846), M (R. 847- 
910), N (R. 911-913 and R (R. 718-719)). The clubhouse 
construction project Avas sponsored by the City of Macon 
acting in conjunction with a private group known as the 
Women’s Clubhouse Commission. In its application for 
federal funds for this project, the City of Macon, by its 
Mayor and Treasurer, executed numerous documents con­
stituting agreements, assurances, certificates, representa­
tions and contracts which are contained within the W.P.A. 
records (Intervenors’ Exhibits K  (R. 724-841) and M (R. 
847-910)). The City in several documents represented to 
the United States that the City was the sole owner of the 
Baconsfield Park property (R. 774, 788-789), that the City’s 
ownership was “perpetual,”  that there were no reversion­
ary or revocation clauses in the ownership documents (R. 
789), that the property was not private property (id.), and 
certified that the proposed clubhouse project was “ for the 
use or benefit of the public” (R. 796, 808). Federal funds 
totaling $16,512.80 were expended to construct the club­
house (see Intervenors’ Exhibits L (R. 842-846) and N (R. 
911-913)). The city officials signed documents indicating 
that the sponsor’s (City’s) share of construction costs would 
be financed out of the “ regular tax fund with the assistance 
of the Women’s Club of Macon” (Intervenors’ Exhibit K ; 
R. 774). The Women’s Club had agreed to contribute $3,000 
(Intervenors’ Exhibit R ; R. 718). The sponsor’s (City’s) 
share of the construction costs finally amounted to $8,376.91 
(R. 846, 913). The total costs of the clubhouse, including 
the federal contributions ($16,512.80; R. 845, 912) was 
$24,889.71 (Intervenors’ Exhibits L and N).



19

In a sworn certificate executed under oatli by the Mayor 
and Treasurer of the City of Macon on October 14, 1938, 
quoted in full below, the City promised that there would be 
no discrimination against any group or individual in the 
use of the clubhouse or the property upon which it was lo­
cated, and that the City did not intend to lease, sell, donate 
or otherwise convey title or release jurisdiction of the prop­
erty during the useful life of the improvements built with 
federal funds. The certificate contained in Intervenors’ 
Exhibit K, reads as follows (E. 822):

With reference to Works Progress Administration 
Project Application State Serial No. 6586, this is to 
certify that the proposed building referred to in plans, 
specifications and other data submitted to support the 
project applications, as “Baeonsfield Club House” will, 
upon completion, be used as a community club house 
for the general use and benefit of the public at large, 
without discrimination against any individual, group 
of individuals, association, organization, club or other 
party or parties who may desire the use of the build­
ing and the property upon which the building is lo­
cated.
It is further certified that the City of Macon, as project 
sponsor and owner of the property upon which the 
building is to be constructed, does not intend to lease, 
sell, donate or otherwise convey title or release juris­
diction of the property together with improvements 
made thereon, during the useful life of the improve­
ments placed thereon through the aid of W. P. A. 
funds.
It is further certified that the City of Macon, as project 
sponsor, will be responsible to see that the property 
together with the improvements made thereon will be 
maintained for the general use and benefit of the pub-



20

lie, and will not be used for the profit or benefit of 
any one individual or specific group or organization; 
and the management of the property, together with 
improvements made thereon, will at all times be sub­
ject to the approval of the designated city official or 
officials of the City of Macon, who will be responsible 
to see that the foregoing certification is adhered to.

/ s /  Charles L. Bowden 
Mayor, City of Macon, 
Georgia

/ s /  Frank Branan
Treasurer, City of Macon, 
Georgia

Another similar certificate or agreement containing as­
surances that the property “will not be leased, sold, donated 
or otherwise disposed of to any private individual or cor­
poration, or to a quasi-public organization during the oper­
ation of the project” and would be “maintained by the 
Women’s Club and operated for the benefit of the general 
public,” was executed September 7, 1938, by the Mayor 
and Treasurer of the City of Macon and by the President 
and Treasurer of the Women’s Club House Commission 
(Intervenors’ Exhibit M at R. 889).

The Women’s Club continues to occupy the clubhouse in 
Baconsfield Park, using the building free of charge and 
without paying rent either to the City or to the Board of 
Managers. The Women’s Club charges fees for various or­
ganizations which use the building for meetings, but none 
of these funds go to the City or to the Board of Managers 
(R. 212-219, 312-315, 328-331). Mayor Merritt of Macon 
testified that he has attended meetings at the Clubhouse of 
such organizations as the Georgia Legal Secretaries Asso­
ciation, the Georgia Milk Dealers Association, and several



21

other local associations of various types (R. 216, 218). 
The minutes of the Board of Managers of Baconsfield in­
dicate that the Board permitted the Highland Hill Baptist 
Church to use the Baconsfield Clubhouse as the temporary 
meeting place for the church during the construction of 
the church. The Board voted this permission for the 
church to use the Clubhouse at its meeting of June 25, 
1953, notwithstanding its attorney’s advice that this use 
was not permitted by Senator Bacon’s will (Exhibit A, 
Minutes of 6/25/53; R. 404-407). A. letter from the Chair­
man of the Board of Deacons of Highland Hill Baptist 
Church thanking the Board for the use of the Clubhouse 
as a meeting place for the church was read at the Bacons­
field Board meeting of May 17, 1955 (Exhibit A, Minutes 
of 5/17/55 ;B . 424).

Public Roads in the Park

Certain roads running through Baconsfield Park were 
paved and developed by the City (R. 224-227; 279-280; see 
also, Intervenors’ Exhibit A, Minutes of 5/17/55 (R. 425- 
426). On several occasions the Board of Managers resolved 
to seek federal funds for the paving of roadways in the 
park, but the record does not indicate whether any federal 
highway funds were actually obtained (see Intervenors’ 
Exhibit B, Minutes of 3/30/36 (R. 508-509); 6/28/38 (R. 
526); and 10/12/38 (R. 527)). On one occasion the City 
paid the Board of Managers the sum of $1,000 as “partial 
reimbursement from City of Macon foi paving in Bacons­
field.” (Intervenors’ Exhibit A, financial statement fol­
lowing Minutes of 10/16/47; R. 393).

City-Built Swimming Pool and Bathhouses at Baconsfield

As early as 1936, the Board of Managers of Baconsfield 
began discussing the desirability of constructing a swim­
ming pool in the park, and the discussion of government



22

aid for a pool continued for years (Intervenors’ Exhibit 
B, Minutes of 6/29/36 (R. 512), 7/30/36 (R. 514), 12/7/36 
(R. 517), 12/14/44 (R. 549), 5/30/45 (R. 551-557)). Fi­
nally, on June 3, 1947, the Chairman of the Board of Man­
agers met with the Mayor and several aldermen of Macon 
and “ strongly urged” that the City appropriate $100,000 
to build a pool in Baconsfield. (See Intervenors’ Exhibit 
A, Minutes of 6/3/47; R. 382-383.) The City agreed to 
this suggestion and on July 22, 1947, resolved to deliver 
the sum of One Hundred Thousand Dollars to the Board 
of Managers of Baconsfield to he used by the Board for 
the construction of a swimming pool. (Intervenors’ Ex­
hibit I ;  R. 686; see also, Intervenors’ Exhibit V ; R. 723.) 
Subsequently, the City appropriated an additional Forty 
Thousand Dollars on December 23, 1947 to the Recreation 
Department to construct bathhouses at Baconsfield pool 
(Intervenors’ Exhibit I ;  R. 686). The Baconsfield minutes 
indicate that the Board of Managers accepted the $100,000 
grant and designated the Chairman and Secretary of the 
Board of Managers and the Chairmen of the City Council’s 
Finance and Recreation committees to act as agents to con­
struct the pool and disburse the funds from a special swim­
ming pool account. (Intervenors’ Exhibit A, Minutes of 
8/4/47; R. 386-388.) A large community swimming pool 
and adjacent buildings were constructed in 1948 on a por­
tion of the Baconsfield land designated in Bacon’s will as 
income-producing property. After the pool was constructed 
the Board of Managers and the City entered into a contract 
by which the pool was leased by the Board to the City for 
a two year term, to be automatically renewed for successive 
two year terms unless either party terminated the lease 
or the City breached its covenants (Heirs’ Exhibit D; R. 
678-683). The City agreed to operate the pool:

. . .  as a part of the pleasure and recreational facil­
ities of Baconsfield, for the enjoyment and benefit of



23

the beneficiaries of the trust for Baconsfield, as set 
up and established in the said last will and testament 
of the said A. 0. Bacon, deceased, and also for other 
persons who are or may be admitted to Baconsfield 
(R. 680).

The City agreed to bear any losses in connection with the 
pool operation, and to share any profits with the Board. 
No payments to the Board were made under this provision 
(Heirs’ Exhibit H and attached letter; R. 941-945). The 
City made additional capital expenditures at the pool and 
related facilities over the years for improvements, includ­
ing the following amounts (Heirs’ Exhibit H ; R. 944):

1948 $ 4,999.57
1960 6,079.21
1962 6,360.55

$17,439.33

The sum of $1,084.93, which remained in the old swim­
ming pool account was transferred to the regular account 
of the Board of Managers in 1959. (Intervenors’ Exhibit 
A, Minutes of 5/8/59; R. 451, and financial statement fol­
lowing Minutes of 10/29/59; R. 456.)

The pool was finally closed and the lease cancelled in 
1964 in order to avoid racial desegregation as required 
by the Fourteenth Amendment. In April 1963, following 
attempts by Negro groups to integrate the park, the Board 
resolved to cancel its contract with the City relating to the 
pool and to attempt to negotiate a contract with a private 
party for operation of the pool (Minutes of 4/9/63; 
R. 483-484). At the same time, the Board directed its at­
torneys to commence this lawsuit to remove the City as 
trustee (Id.). The swimming pool contract was finally can­
celled in May 1964. The Board’s attorney wrote a letter



24

to Mayor Merritt dated May 22, 1964 (Intervenors’ Exhibit 
X ; R. 921-923) stating that it was cancelling the pool lease 
because of the City’s inability to enforce racial segrega­
tion at the pool. The Mayor replied by letter dated May 28, 
1964 (Intervenors’ Exhibit Y ; R. 924), acquiescing in the 
termination and relinquishing control of the pool to the 
Board of Managers. The swimming pool has remained 
closed since that time, and has not been maintained or 
kept in repair since 1964. Xearby highway construction 
which interfered with the pool area during a period of time 
has now been completed, but the pool remains closed.

City Operated Zoo

The City established a zoo in Baconsfield Park, with 
caged animals, including monkeys, a bear, ducks, rabbits, 
a raccoon, a few deer, and a few peafowl and pheasants. 
(Answer of Board to Interrogatory No. 2; R. 172-173.) 
Mayor Merritt stated that the zoo included 40 or 50 
monkeys (R. 203). The zoo was closed and all the animals 
and cages removed after the City resigned as trustee in 
1964. While the zoo was in operation the City employed a 
full-time employee at Baconsfield to take care of the animals 
(R. 205-206, 211, 290). The Public Works Department of 
Macon dismantled the zoo (R. 208).

Public School Playground

A playground in the Baconsfield Park is regularly used 
as the school playground for a nearby public school oper­
ated by the Bibb County Public School System. The school 
is Alexander School Number 3, a previously all white ele­
mentary school, which it was anticipated would be attended 
by a small number of Negro pupils living in the neighbor­
hood under the school district’s desegregation plan. (In­
tervenors’ Exhibit W, Stipulation No. 2; R. 919.) The 
school personnel supervise the children in using the play­
ground in Baconsfield (R. 235-236, 241-242). The Bibb



25

County Board of Education was responsible for having the 
playground installed, including basketball courts (R. 244, 
262). Prior to 1964, the City Recreation Department had 
an employee assigned to the playground at Baconslield to 
supervise the children. The City spent an average of 
$1,180.70 per year to employ someone at the playground 
prior to February 1964 (R. 237-241).

City Leased Building

From 1954 until the present time, the City has leased a 
building referred to as the Open Air School from the 
Board of Managers and paid the Board a rental of $300 
per annum. (Exhibit A, Minutes of 6/24/54; R. 413; 
R. 246-251.) This is a one story brick building located in 
the portion of the Baconsfield property set aside for raising 
revenue (R. 246). The City in turn makes the building 
available, free of charge, to the Macon Young Women’s 
Civic Club for the activities of the “ Happy Hour Club,” an 
organization of elderly people (R. 248-249). The building 
was previously occupied by the Board of Education rent 
free (Intervenors’ Exhibit B, Minutes of 7/10/41; R. 541).

City-Aided Recreation Facilities

A  Little League baseball field located in the park was 
constructed in part with the aid of the City which dumped 
100 to 200 truck loads of dirt in a low area of Baconsfield 
where the field is now located (R. 219-222). The financial 
records of the Board indicated that it made a “part pay­
ment” to the City for filling in the play area in the amount 
of $3,500. (Exhibit A, financial statement following Mi­
nutes of 12/18/56; R. 437.) The minutes do not indicate 
any subsequent payments.

Several tennis courts are maintained in the park. The 
City of Macon assisted in installing lights at the tennis 
courts to permit play at night. (R. 228-229; Minutes of 
7/24/62; R. 475.) In 1964. the Board of Managers granted



26

to the Macon Tennis Club, a private club, permission for 
the club to regulate play at the Baconsfield Tennis Courts 
according to the rules of the club, and permission to main­
tain the tennis courts. (Intervenors’ Exhibit A, Minutes 
of 4/10/64; R. 492.)

Sale of Portion of Trust Property to State

During World War II, when informed that the War De­
partment wanted a strip of land to open a roadway, the 
Board and the City sold a strip of land from the area of 
Baconsfield devised by Senator Bacon as income-producing 
property to the State Highway Board of Georgia. (See 
the deed and attached resolutions, Intervenors’ Exhibit H ; 
R. 655-660.) The Board of Managers received a check in 
the amount of $1,500 from the City of Macon in this trans­
action. (Intervenors’ Exhibit B, Minutes of 3/3/42; R. 542- 
543, and financial statement following Minutes of 12/15/44; 
R. 550.)

Tax Exemption

The Board of Managers has never paid any taxes, fed­
eral, state, or local, on the Baconsfield property or on any 
of the income they have received. The property has always 
been treated as exempt from taxes under Georgia laws. 
(See Financial Statements in Intervenors’ Exhibits A and 
B, passim.)

Income Property

The income-producing area of the trust property now 
includes a shopping center with several business, includ­
ing a filling station, pharmacy, ice cream store, etc. The 
rental income of the Board o f Managers during calendar 
year 1966 was $7,058.37. (Computed from Intervenors’ 
Exhibit C; R. 569-592.) The rental income received during 
the period April 1, 1963, to March 31, 1964, was $5,225.04 
(R. 346). During the years the Board also has received 
payment for various types of utility easements on the



27

property. In 1958, the Board received $3,500 from the City 
Board of Water Commissioners for a sewer easement. (In­
terveners’ Exhibit A, financial statement following Minutes 
of 5/8/58; R. 446.) The State Highway Department ac­
quired 26.932 acres of land in Baconsfield by condemnation 
proceedings in 1964 to construct a portion of Interstate 
Highway 16. (Heirs’ Exhibit I ; R. 923.) The Board of 
Managers was awarded the sum of $131,000 in the con­
demnation, and the Court ordered that sum paid to the 
Chairman of the Board of Managers to be invested in short­
term government bonds and to be held subject to the fur­
ther order of the court pending the outcome of proceedings 
in the instant case (ibid.).

Assets of the Estate

The assets as of April 17, 1967, held by the First Na­
tional Bank & Trust Company in Macon, as agent for the 
Board of Managers of Baconsfield, were stated by the 
Bank as follows (Intervenors’ Exhibit D; R. 594):
“ A ssets :

Cash:
Principal Cash Overdraft 
Income Cash Balance

Property:
Real Estate 
U. S. Treasury Bonds 
Savings Account First 

National Bank

Total Assets
Less :

Real Estate
Highway Right of Way Fund

398,766.92

$ 266.44
9,443.67

$ 9,177.23

255,000.00
136,434.98

7,795.05

399,230.03

$408,407.26

255,000.00
143,766.92

Rent Accumulation $ 9,640.34”



28

The original trust fund of $10,000 in bonds left by Sen­
ator Bacon, was long ago “ depleted” according to the 
City (City’s Answer to Interrogatory No. 13; R. 153).

An accounting filed by the successor trustees with the 
court below on June 3, 1968, showed the total trust assets 
to be $404,810.77, including a book value for the real estate 
of $255,000 (R. 1055).

How the Federal Questions Were Raised 
and Decided

The petitioners’ federal constitutional objections to the 
order of the court below ruling that the Baconsfield Park 
property had reverted to the heirs were stated in their 
Response to the motion for summary judgment (R. 157- 
160) and in their several supplemental responses (R. 371- 
374, 695-706, 917-918, 971). The federal constitutional ob­
jections were repeatedly and elaborately articulated. The 
following excerpts from the Supplemental Response and 
the Second Supplemental Response represent the general 
thrust of petitioners’ argument as stated to the Superior 
Court:

The entry of a judgment to the effect that the trust 
properties should revert to the heirs of Senator Bacon 
would violate the intervenors’ rights under the Due 
Process and Equal Protection clauses of the Four­
teenth Amendment to the United States Constitution, 
in that:

(a) A  Judicial decree of reversion would not im­
plement the intent of Senator Bacon’s will, which ex­
pressed the legally incompatible intentions that (1) 
Negroes be excluded from Baconsfield Park, and (2) 
that Baconsfield Park be kept as a municipal park for­
ever. A  judicial choice between these incompatible



29

terms must be made in conformity with the said 
Fourteenth Amendment. The affirmative purpose of 
the trust, to have a park for white people, will not fail 
if the park is opened for all, and for the court to rule 
that the mere admission of Negroes to the park is such 
a detriment to white persons’ use of the park as to 
frustrate the trust and cause it to fail, would be a viola­
tion of the said Fourteenth Amendment. (R. 371-372)

# * *
An application of the reverter doctrine or other doc­

trine finding a failure of the trust on the facts of this 
case would amount to a judicial sanction which imposed 
a penalty because the agencies managing Baconsfield 
Park fulfilled their Fourteenth Amendment obligation 
to operate the park on a racially non-discriminatory 
basis. The use of such a judicial sanction in these 
circumstances would violate the intervenors’ rights 
under the due process and equal protection clauses 
of the Fourteenth Amendment to the Constitution of 
the United States. (R. 702)

—  6 —

The due process and equal protection clauses of the 
Fourteenth Amendment to the Constitution of the 
United States require that the racially exclusionary 
words of Senator A. 0. Bacon’s will relating* to Bacons­
field Park be treated by the courts as pro non scripto 
as though they were never written. This is required, 
firstly, because the racially exclusionary terms were 
written in the will to conform to racially exclusionary 
suggestions and requirements of Georgia Code Section 
69-504 (Georgia Acts 1905, p. 117). The racial portions 
of Section 69-504 are void under the Fourteenth 
Amendment, and indeed were void ab initio even under 
the “ separate but equal” doctrine, by authorizing the



30

total exclusion of Negroes from public parks, and thus 
must be regarded as pro non scripto. Secondly, it is 
required because by the City’s acceptance of the park, 
pursuant to Georgia Code Section 69-505 (Georgia 
Acts 1905, pp. 117-118), and its operation of the park 
in accordance with Bacon’s will, the will was made a 
part of the City’s own laws governing the operation 
and use of the park, and is to be treated in the same 
manner as if the racially exclusionary words appeared 
in a city ordinance. (R. 702-703)

— 9 —
By virtue of all the facts and circumstances pre­

sented on the record of this case the City of Macon 
has so invested the Baconsfield Park with a public 
character, and the City has become involved to such 
an inextricable extent, that it would be a violation of 
the intervenors’ rights under the due process and 
equal protection clauses of the Fourteenth Amend­
ment for the state courts to apply any state law doc­
trines (whether relating to trust law, the law of dedica­
tion, real property law, or other principles), so as to 
defeat the rights of the intervenors to racially non- 
discriminatory use and access to the park as a public 
park. (R. 704-705)

Before the Superior Court the constitutional claims were 
argued orally and were presented in full written briefs. 
The ruling of the trial court on petitioners’ constitutional 
arguments was brief and general. The court stated in its 
order of May 14, 1967 (R. 1002):

It is my opinion that Shelley vs. Kraemer, 334 U.S. 
1, 68 S.Ct. 836, 92 L.ed. 1161 (1948), does not sup­
port the position of the intervenors. It is further my 
opinion that no federal question is presented in regard 
to the reversion of Baconsfield, but rather this prop­



31

erty has reverted by operation of law in accordance 
with well settled principles of Georgia property law.

The federal questions were preserved on appeal by ap­
propriate enumerations of error and again fully briefed 
before the Supreme Court of Georgia. The Supreme Court 
of Georgia also rejected petitioners’ constitutional argu­
ments on the merits. The court stated at the conclusion 
of its opinion (R. 1125-26) :

6. The intervenors urge that they have been denied 
designated constitutional rights by the judgment of 
the Superior Court of Bibb County holding that the 
trust has failed and the property has reverted to Sen­
ator Bacon’s estate by operation of law. We recognize 
the rule announced in Shelley v. Kraemer, 334 U.S. 1 
(68 SC 836, 92 LE1161, 3ALR2d 441), that it is a viola­
tion of the equal protection clause of the Fourteenth 
Amendment of the United States Constitution for a 
state court to enforce a private agreement to exclude 
persons of a designated race or color from the use or 
occupancy of real estate for residential purposes. That 
case has no application to the facts of the present 
case.

Senator Bacon by his will selected a group of people, 
the white women and children of the City of Macon, 
to be the objects of his bounty in providing them 
with a recreational area. The intervenors were never 
objects of his bounty, and they never acquired any 
rights in the recreational area. They have not been 
deprived of their right to inherit, because they were 
given no inheritance.

The action of the trial court in declaring that the 
trust has failed, and that, under the laws of Georgia, 
the property has reverted to Senator Bacon’s heirs, is 
not action by a state court enforcing racially discrimi­



32

natory provisions. The original action by the Board 
of Managers of Baconsfield seeking to have the trust 
executed in accordance with the purpose of the testator 
has been defeated. It then was incumbent on the trial 
court to determine what disposition should be made of 
the property. The court correctly held that the prop­
erty reverted to the heirs at law of Senator Bacon.

REASONS FOR GRANTING THE WRIT

I.

The Importance of the Question in the Framework 
of This Case.

A. The Decision of the Georgia Court Frustrates This 
Court’s Mandate in Evans v. Newton, 382 V.S. 296  
(1 96 6 )

It is evident that the decision to which this petition ad­
dresses itself makes a practical nullity of this Court’s deci­
sion in Evans v. Newton, 382 U.S. 296 (1966). Whether it 
rightly does so is, of course, a matter for full argument. 
But it may be said in limine that this Court ought to scru­
tinize with plenary care a decision of a state court which 
utterly frustrates one of its own decisions in the same 
case.

But the repugnancy goes deeper than mere practical 
frustration. The proceedings of the Georgia court, it is 
submitted, have been directly disobedient to the clear im­
plication of this Court’s mandate.

When this Court uttered its prior decision in this case, 
the Georgia courts had taken one and only one action, with 
two aspects. They had accepted the City’s resignation as 
trustee, and had appointed new trustees—all for the an­



33

nounced purpose of effecting racial discrimination. This 
Court “reversed” the Georgia decision. All there was to 
“ reverse” was this substitution of trustees, and the “re­
versal” must therefore have amounted to a direction to re­
instate the City as trustee. This has not been done.

To have obeyed this mandate would have brought it about 
that a public trustee, under a duty of defending the trust, 
would have continued a party to this action. The city of 
Macon, as trustee, would have been formally forced either 
to defend this trust against the heirs’ claims or to ac­
count politically as trustee to all its citizens, white and 
colored, for its letting go by default the park they all will 
lose if it reverts. This position of the City might or might 
not have been decisive in shaping the fate of Baconsfield 
in the Georgia courts. But the hasty dismissal of the City 
as a party, in implicit disobedience to the mandate of this 
Court “ reversing” a decree that dismissed the City as 
trustee, is at the least a peculiar circumstance in the case 
that ought to lead to full scrutiny.

B . The Decision of the Georgia Court Is Inconsonant 
With Prior Decisions of This Court

The Georgia court’s decision cannot be squared with the 
doctrines of McCulloch v. Maryland, 4 Wheat. 316 (1819); 
Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1867); Shelley 
v. Kraemer, 334 U.S. 1 (1948); Barrows v. Jackson, 346 
U.S. 249 (1953); Reitman v. Mulltey, 387 U.S. 369 (1967); 
and Griffin v. County School Board, 377 U.S. 218 (1964), 
amongst others, nor with the decision of the Third Circuit 
Court of Appeals in Pennsylvania v. Brown, 392 F.2d 120 
(3rd Cir. 1968), cert. den. 391 U.S. 921 (1968), as will 
more fully be made to appear in II hereof.



34

C. Allowing the Georgia Court’s Decision to Stand W ill 
Seem to Open a Fertile Field for Implementing 
Racial Discrimination, and Will Therefore En­
courage Schemes Aiming at Such Discrimination

The present case is a very strong one for scrutinizing 
the state court’s action. First, the penalization by reverter 
is not in obedience to any private person’s formed intent, 
but is rather by operation of present-day Georgia law (as 
is admitted by the Georgia court, see infra, p. 38). Sec­
ondly, the penalty operates not on a deliberately chosen 
breach of the terms of a deed or will, but on a breach 
compelled by the Fourteenth Amendment; the citizens of 
Macon are being deprived of their park because their city 
government is performing its federal duty. Thirdly, pub­
lic rather than merely private interests are at stake.

If this Court lets stand without examination a case de­
creeing reversion on these extreme facts, the Georgia 
court’s untouched ruling will be widely cited a fortiori to 
establish that the weapon of reverter is a legitimate one 
for enforcing racial discrimination in a vast range of cir­
cumstances. Racial discrimination will be reinvigorated 
and given new hope. This Court will in any case ultimately 
have to deal with the situation thereby created. The pres­
ent case, for the reasons given, is an unusually favorable 
one for making a start.



35

II.

The Decree o f  the Court Below Is Hostile to the 
Petitioners’ Right to Immunity From Racial Discrim­
ination.

A. The D ecree o f the Georgia Court Im poses the Drastic 
Penalty o f  R everter on  Com pliance W ith the Four­
teenth Am endm ent, and in so D oing Infringes Upon  
a Federal Interest Declared and Created by the Con­
stitution, at the Same Tim e and by the Same Act In­
flicting Detrim ent on the Petitioners and Encourag­
ing Racial Discrimination

The immediate contemporary facts presented by this 
record are simple and damning. A park was being operated 
by the city of Macon as trustee, and by a Board of Mana­
gers appointed by the City Council. The Fourteenth 
Amendment says that Negroes may not be excluded from a 
park so operated. Macon accordingly allowed Negroes to 
use the park. Upon this showing*, the Georgia court decrees, 
the extreme penalty of forfeiture of the property.

On the face of it, this constitutes a direct and drastic 
interference by the state of Georgia with a course of events 
charged with that high and positive federal interest which 
attaches to the commands of the Constitution. State power 
in no form and on no state-law doctrinal basis may take 
action hostile to a federal interest so expressed, and penal­
ize that which the Constitution commands. McCulloch v. 
Maryland, 4 Wheat. 316 (1819); Crandall v. Nevada, 73 
U.S. (6 Wall.) 35 (1867); cf. Shelley v. Kraemer, 334 U.S. 
1 (1948); and Barrows v. Jackson, 346 U.S. 249 (1953).

It is clear, in addition, that this action of the Georgia 
court will operate as a discouragement to expeditious and 
voluntary compliance with the Fourteenth Amendment, and 
will encourage racial discrimination, contra the decision



36

in Heitman v. Mulkey, 387 U.S. 369 (1967). If this Georgia 
decision stands, it will he taken as a strong precedent 
{supra, I, C) supporting the proposition that state courts 
may generally decree reversion of property for breach 
of a racial condition. The use of this device, and compli­
ance by those placed in terrorem, will undoubtedly be sig­
nificant.

Where, as here, the reverter occurs as to public prop­
erty, Negroes will be discouraged from asserting their 
rights since they will know (and be told) that such asser­
tion would be a futility since reversion would attend their 
success; this might be of little significance in Macon, but it 
might well be highly significant in small communities with 
few Negro inhabitants. Cities, reciprocally, would be en­
couraged to evade as long as possible their duty to inte­
grate. A potential discouragement of racial equality need 
not be absolutely certain or highly substantial in order to 
offend the Constitution. See Robinson v. Florida, 378 U.S. 
153 (1964), where the fact that a restaurateur, if he should 
desegregate, would be directed to put in separate toilets, 
was held sufficient discouragement to make unconstitutional 
his, in fact, discriminatory rule.

It is true that the detriment here imposed for failure to 
keep Baconsfield white is not one directly avoidable by 
keeping Baconsfield white, since that is forbidden by the 
Fourteenth Amendment. It might be argued, then, that 
the sanction of reverter does not in this case foster racial 
discrimination, since the racial discrimination involved 
cannot permissibly occur in any case. The consequence of 
this argument would seem to be an absurdity—that a state 
may impose any forfeiture it likes on the performance of 
a compelled federal duty, even though it cannot impose any 
forfeiture on the same act when that act is not a federal 
duty. If the argument had force, a state could fine a man,



37

in a moderate sum, for paying Ms federal income tax, since 
lie has to pay that tax anyway, and hence cannot be in­
fluenced not to pay it by the fear of a small fine. Sound 
federalism is not built of such scholastic spiderwebs. The 
imposition by a state of a forfeiture, on a showing that a 
federally imposed duty has been or will be performed by a 
municipality, is as noxious an interference with national 
supremacy as can well be imagined. U. S. Constitution, 
Art. V I; see McCulloch v. Maryland, 4 Wheat. 316 (1819); 
Crandall v. Nevada, 73 U.S. 35 (1867).

A  state which would thus impose a drastic forfeiture of 
property as a penalty for obedience to the Constitution, 
and, moreover, do so in a way that effectively discourages 
the assertion of federal rights and encourages their denial 
must surely come forward with some justification. The 
only justification even specious must be looked for in Sena­
tor Bacon’s will. On examination, there are here two pos­
sibilities, one of which is totally and clearly demurrable, 
and the other of which, being entirely unsustained by the 
record, is admitted by the Georgia court not to exist in 
fact.

First, Senator Bacon clearly and seriously desired that 
Negroes be excluded from this publicly operated park. But 
neither he nor any other person has any lawful power to 
command such a result. That result can be attained only 
by the repeal of the Fourteenth Amendment. Senator 
Bacon’s desire in this regard is no more effective in law 
than would have been an expressed direction that a colored 
citizen of Macon chosen by lot stand in the stocks in the 
park every Sunday. There can never have been any doubt 
about this, since at least 1956, and no party connected with 
this case ever seems to have doubted it, but any possible 
doubt was laid at rest by the decision of this Court in 
Evans v. Newton, 382 U.S. 296 (1966).



38

A  quite different expressed or implied desire of Senator 
Bacon might be brought forward as justification for what 
has been done; it might be said that Senator Bacon in­
tended, desired, or willed the reversion of this property 
to his heirs if Negroes had to be allowed to use the park. 
If such intent were discernible, or inferable, an interesting- 
question would be presented. The categorical fact is, how­
ever, that Senator Bacon’s intent, desire, or will in this 
regard is unknown and unknowable, and in overwhelming- 
probability never was so much as formed. The Georgia 
court admits this unmistakably, saying that the reversion 
which it decrees occurs “because of a failure of the trust, 
which Senator Bacon apparently did not contemplate and 
for which he made no provision.”  (R.1122; Appendix, 
infra p. 22a) (emphasis added).

Despite this admission, which entirely covers the ground, 
it will be useful briefly to show how thoroughly unknowable 
Senator Bacon’s intent in this regard must remain. First, 
the Bacon will, and this whole record, are absolutely silent 
on this point. One must therefore recur to the probabilities. 
The question then is, would a Georgian who died over fifty 
years ago prefer to have his lovely farm remain as a park 
with some Negroes using it along with whites, or would he 
prefer to have it become mere city real estate, fully alien­
able, subject to all the vicissitudes affecting such property 
through the decades and centuries? On the latter alterna­
tive, Negroes certainly cannot be excluded. If a restaurant 
is opened on the property, Negroes must be served. If 
rent property is erected, Negro tenants cannot be rejected. 
I f there are sidewalks, Negroes cannot be kept off them. 
Senator Bacon’s announced ground for his exclusionary 
policy—the prevention of “ social relations” among the 
races—cannot be attained, even as to this property, by a 
reversion, except for so long as it remains completely 
“private” and in the hands, by chance, of a special sort of



39

“ private” owners. What wise lawyer in 1911 would have 
thought that alienable city real estate, descending- from 
heir to heir, could be kept completely “private,” and in 
the hands of those who would prevent racial interrelation?

Senator Bacon, moreover, formed and expressed his de­
sire for racial exclusion against a background of seemingly 
permanent racial separation. His desire for his park was 
congruent with the social system in which he lived. If he 
had known that separation of the races in public facilities 
of all sorts was to become impossible in Georgia, would he 
have preferred to let his farm become city real estate 
rather than let it be a park conducted on the same lines as 
all other public facilities in the State? Of course, no one 
can know.

Senator Bacon’s wish to have Negroes excluded was 
firmly expressed, but by no means more firmly than was 
his desire to have this park stay a park forever. No man 
can attribute to Senator Bacon any choice, even as a mat­
ter of probable hypothetical prediction, between these 
goals. No party in this case, as it now stands, has any 
claim to be considered as the agent of Senator Bacon’s 
wishes. The admission of the Georgia court to this effect 
is compelled by the record.

The state of Georgia, having acted through its courts to 
decree forfeiture of public property on a showing that 
Negroes have used it and must be allowed to use it, cannot 
(and does not), therefore, proffer the justification that it 
is merely carrying out the command of a private testator. 
(It is highly questionable whether even that justification 
would suffice, but petitioners need not here argue the point.) 
The only possible justification remaining is that the rever­
sion occurs “by operation of law.” But law “ operates” as 
a human act; in this case the act is that of the Georgia 
court. Cf. Erie R.R. v. Tompkins, 304 U.S. 69 (1938).



40

Georgia may have any rules of trust law she desires, declar­
ing these by statute or by judicial decision. Or she may, if 
she wishes, have no law of trusts at all. The one reserva­
tion is that no state law, particular or general, legislative 
in origin or judicially fashioned, concerning “ failure of 
trust” or concerning anything else, may penalize obedience 
to federal law. The ruling below does just that.

These petitioners have standing to assert the ground 
developed in this section. The constitutional norm against 
racial discrimination, obedience to which is being penalized 
here, runs primarily in their favor. Of. Barrows v. Jackson, 
346 U.S. 249 (1953). These petitioners have, in addition, 
a direct and substantial interest in the treatment of the 
claim they here assert; if it is upheld, then the decree 
pronouncing reversion of this property is reversed, the 
park continues as a park, and these petitioners are (by 
force of the Fourteenth Amendment) entitled to use that 
park. Evans v. Newton, 382 U.S. 296 (1966). They have 
standing, then, in both senses of the term—they are the 
centrally intended beneficiaries of the rule they invoke, 
and they will in fact benefit substantially from its ap­
plication in this case.

Although petitioners have standing, it is worthwhile 
noting how very widespread would be the impact of 
the penalty here imposed on the City’s performance of 
its Fourteenth Amendment duty. In taking away this 
park, Georgia destroys values built up by many per­
sons and entities. The City has spent money on the 
park—money contributed over the years by its citizens. 
The tax immunity enjoyed by this park has been in effect 
a huge subsidy at the expense of taxpayers of all races. 
The federal government has contributed to the creation 
and to the improvement of the park, in part after an express 
certification that it was a nondiscriminating public facility.



41

The decree of the Georgia court destroys all these values, 
repudiates this certification, and wipes out the deep and 
total public character which decades of maintenance and 
subsidy have given to Baeonsfield—without any warrant 
for this step in Bacon’s directions, and solely on the showing 
that the Negro members of the public may now use this 
public place.

B. The Judgment Thai This Trust Has “Failed,”  Though 
its intended Beneficiaries May Still E njoy Its Benefits 
Just as B efore, Can Rest Logically Only on the Propo­
sition That, as a Matter o f  Law, the Presence o f  Negroes 
Spoils a Park fo r  W hites, an Im perm issible Ground, 
Under the Fourteenth Am endm ent. The R ejection  of 
the Cy Pres Alternative Must Rest on Similar Grounds

The judgment of the Georgia court in this case must 
stand logically on a ground which the Fourteenth Amend­
ment forbids any agency of the state government to occupy. 
The holding, on analysis, must rest on the proposition that, 
as a matter of law, the presence or proximity of Negroes, 
in any number, frustrates enjoyment, by whites, of a public 
amenity. This premise, as to the Negro race, is worse than 
“an assertion of their inferiority,” Strauder v. West Vir­
ginia, 100 U.S. 303 (1880). It is an assertion of their ob­
noxiousness. The Fourteenth Amendment strikes down a 
state decision resting, by irrestible implication, on such a 
shocking ground. See the opinion of Mr. Justice Stewart, 
concurring, in Burton v. Wilmington Parking Authority, 
365 U.S. 715, 726 (1961).2

The affirmative “purpose of the trust” established by 
Senator Bacon is not left obscure by him. It is the fur­

2 Just as, in that case, there was no suggestion in the record that 
appellant was “ offensive” to other customers, so there is no sug­
gestion in this record that petitioners’ presence “ offends” whites to 
the extent of “ frustrating” the purpose of a trust established for 
the benefit of the latter. Here, as there, the offensiveness of the 
Negroes is supplied, in effect, as a matter of law.



42

nishing of a public park to the whites of Macon. That 
purpose has not to any degree been “ frustrated,” in the 
normal sense of that word. The whites of Macon may still 
resort to Baconsfield just as freely as ever. There is not 
one scintilla of evidence in this record showing that the 
admission of Negroes as well either has diminished or 
faintly threatened to diminish the enjoyment of Bacons­
field by whites. (If such evidence were ever to be offered 
in a proceeding of this sort, this Court would then have to 
consider whether such an issue of fact could ever be made 
in an American court.) The conclusion that this trust, 
clearly set up for the benefit of the whites of Macon, no 
longer benefits them, thus “ frustrating” the affirmative 
purpose of the trust, must therefore rest on a conclusion, 
in effect one of law, that Negroes spoil a park for whites.

The only faint (and, it is submitted, illusory) hope of 
escape from this conclusion lies in the assertion that the 
exclusion of Negroes was itself a “purpose of the trust”— 
that is, one of the chief objects of its establishment. But 
to assert this is to assert a great absurdity, an absurdity 
too great to hide behind any generalities about “ deference” 
to state courts; who would leave land in trust for the pur­
pose of excluding Negroes? It is also to impute a truly 
sinister design to Senator Bacon, a design altogether in­
consistent with his expressions of friendship for the Negro 
race. To call the exclusion of Negroes by Senator Bacon 
part of “ the purpose of the trust” is to confuse the affirma­
tive object he had in mind with a provision, incidental 
though important in his eyes, as to a collateral matter.

Confusion, but easily dispellable confusion, may be 
created by the fact that Bacon’s will uses the word “ sole 
. . . . ” But the adjective “ sole” does not denote a mode 
or degree of enjoyment. Unpacked, it says no more than 
that Negroes are to be excluded. It does not in any way



43

differ in its reference from an explicit and separate pro­
vision for their exclusion, and does not make it any the 
less “the purpose of the trust” that the whites of Macon 
shall enjoy Baconsfield.

The Georgia court, in its opinion, repeatedly recognizes 
that the purpose of this trust was the furnishing of a park 
for Macon whites, e.g., “It is clear that the testator sought 
to benefit a certain group of people, white women and 
children of Macon . . . ” ; “ the beneficiaries being ‘the white 
women, white girls, white boys and white children’ of the 
City of Macon . . . ” ; “ Senator Bacon selected a group of 
people, the white women and children of the City of Macon, 
to be the objects of his bounty, in providing them with a 
recreational area.”

Elsewhere, the Georgia court several times speaks of the 
total failure of this purpose, e.g., “ . . . we are of the opinion 
that the sole purpose for which the trust was created has 
become impossible of accomplishment the sole
purpose . . . had become impossible of accomplishment 
. . . ” (emphasis supplied).

It is interesting that these passages recognize and em­
phasize the unitary and simple character of this trust’s 
object; it had a “sole purpose.”  But the passages previ­
ously quoted tell us, correctly, that this “sole purpose” 
was the furnishing of a park to the whites. There is no 
way whatever, therefore, to justify the judgment of the 
Georgia court, except on the basis that, as a matter of 
law, the proximity of Negroes destroys the value of the 
park for whites. That is the certain “hidden major prem­
ise” of the Georgia court’s holding. (It is, of course, not 
petitioners’ assertion that this proposition was consciously 
present to the Georgia court’s mind.)

It is to be observed that this is emphatically not a case 
in which the court was asked to give effect to a provision



44

for reverter, in the event of Negroes’ occupying or other­
wise using property. That case can be decided when it is 
reached. Not even informally, not even by implication, did 
Senator Bacon provide for this reversion. (For full dis­
cussion of this point, and the Georgia court’s admission 
thereon, see above, p. 38 et seq.)

It is then not Senator Bacon’s will, in either sense of 
the word, that is being enforced. It is 1968 Georgia deci­
sional law, and nothing else, that declares that a reversion 
is to be decreed when Negroes must be admitted to a place 
where a testator, in a will fifty-seven years old, has said 
they are not to go—though that testator did not himself 
provide for a reversion.

To sum up at this point, Georgia law provides for a 
resulting trust, in cases of this sort, only where the trust 
has “ failed.” Georgia Code, §108-106(4). This trust can 
be said to have “ failed” only on one of two hypotheses:

(1) It was its “purpose”—its affirmative purpose in the 
sense that “ failure” to attain that purpose is “ failure” of 
the whole trust—to exclude Negroes. This is at once a 
sinister and an absurd interpretation, one to be rejected 
as soon as clearly stated. The Georgia court never es­
pouses it; there is no indication Senator Bacon espoused 
it. For a state court to decree the forfeiture of property 
on such a premise would be to implement and support in 
the most drastic way a particularly noisome form of 
racism—and in this case to do so without even a support 
in the record for the settlor’s having held such a view.

(2) It was the “purpose” of the trust, affirmatively, to 
furnish a park for white people, but that purpose “ fails,” 
even though white people may still use the park, because 
Negroes may also use it. Whatever words one uses to 
describe the evaluation of Negro presence on which this



45

alternative must rest—nuisances, obnoxious, detriments to 
enjoyment—the inescapable assumed premise is that, as a 
matter of law, the presence of Negroes causes white en­
joyment to “fail.” This is an impermissible ground under 
the Fourteenth Amendment.

I f  the Georgia court had had no alternative, under its 
state law, to decreeing reverter whenever all the particular 
terms of any trust could not be fulfilled, then a question 
of some complexity would be presented. We are spared 
the effort of analyzing this complex question, for Georgia 
law very plainly provided the court below with means of 
escape from a holding that a park must revert, and the 
underlying trust be treated as “failed,” merely because 
some Negroes may now join the whites who continue to 
be beneficiaries in fact as well as in law.

The Georgia law of cy pres is codified in two sections 
of the Georgia Code:

108-202. Cy pres.—When a valid charitable bequest 
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 in­
tention.

113-815. Charitable devise or bequest. Cy pres doc­
trine, application of.—A devise or bequest to a chari­
table use will be sustained and carried out in this 
State; and in all cases where there is a general inten­
tion manifested by the testator to effect a certain 
purpose, and the particular mode in which he directs 
it to be done shall fail from any cause, a court of 
chancery may, by approximation, effectuate the pur­
pose in a manner most similar to that indicated by the 
testator.



46

On their face, these statutes seem to command applica­
tion of cy pres to just such a situation as the one which 
confronted the Georgia court in this case. As far as §108- 
202 is concerned, it is entirely plain that continuance of 
the trust on a nondiseriminatory basis effectuates Senator 
Bacon’s intention “as nearly as possible.” There would be 
a large variance from his intention, but that variation, 
however large, would be as small “as possible” under the 
Fourteenth Amendment. Under §113-815, the application 
of cy pres to this case would have carried out the general 
directive of the first clause, and operation of the park on 
a nondiseriminatory bases would, again, amount to its 
operation in the “manner most similar” possible to that 
Bacon directed.

The Georgia court, in the opinion below, treats quite 
briefly the contention that cy pres should have been ap­
plied—not citing either of these statutes. Only one case, 
Ford v. Thomas, 111 Ga. 493, is cited—for the proposition 
that the doctrine “ cannot be applied to establish a trust 
for an entirely different purpose from that intended by 
the testator” ; on examination, all that case held was that 
insufficient effort had been exerted to fulfill the purpose 
the testator stated.

It is stressed in the opinion that Senator Bacon desired 
the exclusion of Negroes—a point conceded by all, and one 
only opening the question whether cy pres should have 
been applied.

Respondents, in their brief in the Georgia court, say 
that the “ one Georgia case we find to be of significance is 
Adams v. Bass, 18 Ga. 130.” That case, decided before 
the Civil War, voided a trust for the resettlement of Negro 
slaves in free states, on the ground that the particular 
states named by the testator would not admit them. Of 
this case, perhaps the best thing one can say is that it was



47

decided before the adoption either of the present Georgia 
code or of the Thirteenth and Fourteenth Amendments.

After Adams v. Bass, no Georgia case has been found 
in which a trust was allowed to fail, when beneficiaries 
and trustee were still in being, and when the intended 
benefit could still be received, merely because the trust 
could not be carried out in the manner directed by the 
settlor. The very least one can say, therefore, is that the 
Georgia court was not bound by any of its precedents, by 
any of its statutes, or (as it concedes) by anything dis­
positive or even suggestive in Senator Bacon’s will, to 
choose not to save this trust. The state court was entirely 
free, and indeed was forced, to make its own choice, as an 
agency wielding state power, between that action (the ap­
plication of cy pres) which would have saved the trust, 
and that action (the one it took) which would destroy the 
trust.

We have to construct the rationale necessary to explain 
logically the court’s ruling, for the grounds it gives are 
little more than conclusory. But these grounds can be 
constructed with certainty—not in the sense that they were 
consciously present to the mind of the Georgia court, which 
petitioners do not assert, but that they are logically neces­
sary to the holding.

It is submitted that, in deciding not to apply cy pres to 
this trust, the Georgia court necessarily decided that the 
racial limitation in Senator Bacon’s will was of more dig­
nity and importance than his equally or more solemn and 
explicit provisions for the perpetuity of this trust. This 
policy decision, by the court, was inescapable. For the 
only other person who could have decided it was Senator 
Bacon, and he did not decide it. The Georgia court con­
cedes that he did not decide it (see p. 38, supra). The rec­
ord would not support a finding that he decided it, but 
would, on the contrary, conclusively show that he did not 
decide it.



4 8

It does not avail to stress (as the Georgia court, in its 
brief treatment of the cy pres contention, stresses) that 
Senator Bacon very seriously desired to keep Negroes 
out of Baeonsfield. The Georgia statutes, on their face, 
clearly provide for cy pres in the very ease, and only in 
the very case, where the settlor’s intent cannot be given 
effect. The question posed to the Georgia court, then, was 
not whether cy pres would fulfill Senator Bacon’s whole 
intent, but whether the variation from that intent was un­
desirable enough to inhibit the use of the clearly available 
device of cy pres. The judgment of the Georgia court, 
under whatever view of state law taken, is therefore a 
judgment that forfeiture of this park and total failure of 
Senator Bacon’s scheme is to be preferred to the admis­
sion of Negroes.

Georgia’s cy pres statutes merely open the way to an 
unavoidable choice between these alternatives; neither they 
nor anything else in Georgia law compel the choice made. 
As to ordinary state law questions of this form, it goes 
without saying the Georgia court’s choice would be final. 
But in this case the choice was made in a direction which 
clearly implies espousal by the state court of an estimate 
that racial mixture is crucially undesirable. Such a deci­
sion is wrong as a federal-law matter.

This state court, then, had to decide whether this trust 
was to be taken to have “ failed” ; its “ failure,” if any, con­
sisted in nothing more or less than the admission of 
Negroes to enjoy the park along' with the intended bene­
ficiaries, who still could themselves enjoy it. Its own cy 
pres doctrines opened an easy conceptual and procedural 
path, under state law, for avoiding the federally imper­
missible result of “ failure” on such facts. But the Georgia 
court chose to reject that alternative, thereby inevitably 
espousing the proposition that enjoyment of a park by



49

whites in the absence of Negroes so fundamentally differs 
from enjoyment of a park by whites in the presence of 
Negroes as to go not to the question of “ exact manner” 
(§108-202) or “particular mode”  (§113-815), but rather to 
the essence. Since the essence of enjoyment is enjoyment, 
this must in turn imply that the presence of Negroes, as 
a matter of law, critically impairs white enjoyment. The 
ground for declaring “ failure” of the trust, and the ground 
for rejecting cy pres, came down then (as one would ex­
pect) to much the same ground—a ground profoundly in­
sulting to Negroes, and hence impermissible under the 
Fourteenth Amendment. Strauder v. West Virginia, 100 
U.S. 303 (1880).

C. At Least Under the Highly Special Circumstances o f  
This Case, the Provision fo r  Racial Discrimination in 
Baconsfield Ought, as a Matter o f  Federal Law, Under 
the Fourteenth Am endm ent, to B e Treated as A b ­
solutely Void. I f  This Is Correct, Then Federal Laiv 
Commands That This Trust Be Continued and That 
the City Continue as Trustee, fo r  It Is Clear That 
W ithout the Racially Discrim inatory Language Georgia  
Law Com pels That Result. Similarly, Federal Law 
Commands That a Public Park “ Dedicated”  to the 
W hite Public B e “Dedicated” to the Negro Public 
as Jf'ell

Senator Bacon’s will was drawn under the then recently- 
enacted authority of the present Georgia Code §69-504:

Gifts for public parks or pleasure grounds.—Any 
person may, by appropriate conveyance, devise, give, 
or grant to any municipal corporation of this State, 
in fee simple or in trust, or to other persons as 
trustees, lands by said conveyance dedicated in per­
petuity to the public use as a park, pleasure ground, 
or for other public purpose, and in said conveyance, 
by appropriate limitations and conditions, provide 
that the use of said park, pleasure ground, or other



50

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 col­
ored 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 de­
velopment, improvement, and maintenance of said 
property. (Acts 1905, p. 117.)

It looked backward, then, to recently enacted state legis­
lation for its indispensable authorization. Even more im­
portant, on its face it clearly looked forward to further 
and quite centrally important official connection with state 
power, for it provided that the City of Macon should be 
trustee. When the City of Macon accepted this position, 
the racially discriminatory provisions in the will became 
tantamount to city ordinances—part of the normative ma­
terial promulgated and espoused by the City with respect 
to the conduct of its parks. Senator Bacon, an eminent 
lawyer, knew and clearly wished that this part of his will 
would speedily gain this official status as part of the 
City’s rules with respect to the operation of its park. It 
would seem quite artificial to treat such provisions at any 
stage in their rapid and intended progress from explicit 
statutory sanction toward the status of being, in effect, 
ordinances, in a manner different from that in which one 
would treat ordinances themselves. Indeed, their character 
as “mere” expressions of Bacon’s will was merged in their 
character as city ordinances on the day the City of Macon 
accepted the trust.

But is it not clear that a city ordinance, commanding 
exclusion of a race from a large park, would simply be



51

stricken? Could a Georgia court be permitted thereafter 
to close the park and give the property back to the former 
owners, on the ground that the known or declared “ pur­
pose” of the laws about parks was the provision of parks 
on a discriminatory basis? See Griffin v. County School 
Board, 377 U.S. 218 (1964). Would not any public-law 
material declaring such a “purpose” have to be similarly 
stricken?

It is submitted, therefore, first, that Senator Bacon’s 
directions about the discriminatory conduct of Baconsfield 
were intended by him to achieve very quickly the status 
of city ordinances, and they did in fact achieve and hold 
that status. Secondly, it is submitted that their status in 
this regard makes it suitable to treat them as unconstitu­
tional city ordinances are always treated—i.e., as nullities. 
I f  they are nullities, then there is not and never was any 
colorable ground for termination of the trust or for the 
City’s resignation. When they are stricken, what remains 
is a public park.

It is worth pointing out that there lurks in this argu­
ment no problem about the retroactivity of Brown v. Board 
of Education, 347 U.S. 483 (1954) and its sequel cases, 
outlawing segregation even where “ separate but equal” 
facilities were provided. The part of §69-504 which au­
thorized racial exclusion, since it authorized the creation 
of city parks without provision for separate equal facili­
ties, was unconstitutional on its face even under Plessy v. 
Ferguson, 163 U.S. 537 (1896). The exclusion of Negroes 
from Baconsfield, a public park run by the city, was un­
constitutional even under Plessy v. Ferguson, supra, unless 
separate but equal facilities were provided; this record 
shows none. Senator Bacon’s testamentary provision for 
exclusion of Negroes rested, then, on an unconstitutional 
statute, and both contemplated and induced an unconsti­



52

tutional action by Macon—under 1910 standards as well as 
under 1969 standards. It would seem reasonable to treat 
a provision so sandwiched as though it were itself uncon­
stitutional, and to strike it out as a matter of federal law, 
as one would strike out the part of §69-504 on which it 
rested, and the discrimination it contemplated and created.

This conclusion, in a deep but true sense, may be seen 
to rest on the philosophy of Marsh v. Alabama, 326 U.S. 
501 (1946). That case held that, where a person dedicates 
his or its property to the public, or to a governmental 
use, there attaches an obligation to respond to the norms 
of the Constitution, as these regulates governmental action. 
It would be harmonious with this philosophy to hold that 
as soon as a testator, like Bacon, publishes a will dedi­
cating his property to serve as a public park, and even 
goes so far as to make the City of Macon his trustee for 
this purpose, so as to effect the incorporation of his rules 
for running the park into the City’s own fabric of law, 
then these directions, if repugnant to the Constitution, are 
to be treated as official rules repugnant to the Constitu­
tion are treated—by looking on them as null and void. A 
constitution which forces color-blindness on the city ought 
to be held to force color-blindness on one who proposes 
to use and succeeds in using* the city as agent of his will)

More in fairness to Senator Bacon’s memory than in 
strict relevance to this point, it should again be empha­
sized that there is no reason whatever for thinking that 
Senator Bacon would have disagreed. We simply have 
no way of knowing whether, if he had been told that this 
park could not be operated at all on a discriminatory 
basis, he would have chosen that it be operated for all. 
Treating his racial directions as pro non scripto, as the 
nullities they would unquestionably be if considered as 
sections in a city code, may, for all we know, do far



53

less violence to what Ms wish would have been than is 
done by the Georgia court in awarding Baconfield to 
his heirs, for such fate as marketable city property may 
have—including likely occupancy, and even ownership, by 
Negroes. The choice to overthrow his scheme in toto is 
not one that can be justified by respect for the wishes of 
a dead man; his choice, among the choices now open, is 
not knowable or even probably inferable. The choice is 
solely that of the 1968 Georgia court. And it is sub­
mitted that as a matter of federal law that court ought 
to be held to treating the racial exclusionary provisions 
as nullities.

The underlying* assumption, in the very similar case 
of Commonwealth of Pennsylvania v. Brown, 392 F.2d 
120 (3rd Cir. 1968), cert. den. 391 U.S. 921 (1968),in­
volving the Girard College Trust seems clearly to be 
that the word “white,” in a will turning property over 
to the public for a public use, is to be treated as a 
nullity. It seems unthinkable that the court uttering such 
a judgment could hold that, after all, the Girard property 
may revert to his heirs. Cf. Sweet Briar Institute v. But­
ton, 280 F. Supp. 312 (W.D. Va. 1967), rev’d per curiam, 
387 U.S. 423, decision on the merits, 280 F. Supp. 312 
(1967).

Another and rather closely parallel route to consider­
ing this racially restrictive language as a nullity is to 
be found in the fact that this park, having unquestion­
ably been “ dedicated” to the white public, must, as a 
result of the federal command of equality, be taken to 
have been “ dedicated” to the Negro public as well.

The regular way of creating a public park in Georgia, 
prior to the enactment of Georgia Code §69-504, was by 
dedication to the public, with reciprocal public easements. 
See Macon v. Franklin, 12 Ga. 239, and the summary



54

on this point in this Court’s opinion in this same case, 
Evans v. Newton, 382 U.S. 296, 300, n. 3 (1966).

Section 69-504, enacted in 1905, while permitting racial 
discrimination, expressly retains the concept of “dedica­
tion” :

Gifts for public parks or pleasure grounds.—Any 
person may, by appropriate conveyance, devise, give, 
or grant to any municipal corporation of this State, 
in fee simple or in trust, or to other persons as 
trustees, lands by said conveyance dedicated in per­
petuity to the public use as a park, pleasure ground, 
or for other public purpose, and in said conveyance, 
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 con­
veyance, devise, give, or grant in perpetuity to such 
corporations or persons other property, real or per­
sonal, for the development, improvement, and main­
tenance of said property. (Acts 1905, p. 117.) 
(Emphasis added.)

Now, when this park passed into the trusteeship of 
the city of Macon, thereupon it became the fixed right 
of all Negro citizens of Macon to be treated, with respect 
to their rights in the park, just as the white citizens 
were treated. This record shows no “ separate but equal” 
facilities in 1914 or at any other time. The enjoyment 
of easements by whites, but not by Negroes, in a park 
under city trusteeship, was therefore unconstitutional



55

even under Plessy v. Ferguson. (See supra, pp. 51-52.) 
It can make no difference that Negroes were not posi­
tioned in knowledge or in povTer to enjoy their rights.

But even if it be thought that this arrangement was 
not unconstitutional under Plessy, and even if (contrary 
to the general rule) Brown v. Board of Education, supra, 
and cases following are not taken as declaring the rule 
that had been correct all along, but only of force pro­
spectively, it is nevertheless indisputable that, at some 
time years prior to this litigation’s commencement, it 
became clear that as a matter of federal constitutional 
law, the Negro citizens of Macon must possess, in re­
spect of this city—trusteed park, just exactly the same 
rights as the white citizens of Macon. Since it cannot 
be contested that the park was “ dedicated” to the use 
of the latter, it must equally, by operation of federal 
law, be taken to be “ dedicated” to the use of the former— 
not because Georgia law commanded that result, not 
because Senator Bacon intended that result, but because 
federal law, in commanding equality, necessarily com­
manded that result.

All interested parties, including the parties to this 
litigation, have acted all along, since the question was 
first raised, on the assumption that discrimination while 
the City was trustee was clearly unconstitutional. But 
it has not been so clearly noted that, as a corollary of 
this proposition, it must be true, since the park, was 
under §69-504 and Senator Bacon’s will unquestionably 
“dedicated” in perpetuity to the whites, by operation of 
the federal command of equality, the park stands “ dedi­
cated” in perpetuity to the Negroes as well.

Since the point of “ dedication” was raised in the as­
signments of error in the Georgia Supreme Court, and 
since it was fully briefed there, it is surprising to find



56

that it is not dealt with in that court’s opinion. There 
is a brief reference in the opinion to the Order and De­
cree of the Bibb County Court; the passage referred to 
is thus the only place one can look for a reasoned state­
ment of the Georgia court’s grounds for rejecting the 
“ dedication” argument:

It is clear that the testator sought to benefit [the 
whites] and the language of the will clearly indi­
cates that the limitation to this class of persons, 
was an essential and indispensable part of the testa­
tor’s plan for Baconsfield. There has been no dedi­
cation of Baconsfield as a park for the use of the 
general public.

It is petitioners’ contention, as just set out, that this 
conclusion is wrong, not as a matter of state law, but 
as a matter of federal law, for the precise reason that 
it takes no account of the fact that federal law com­
manded equal rights—whether as holders of easements, 
or as beneficiaries of “ dedication”—for Negroes. As a 
net integral sum, adding the effect of Bacon’s will, under 
Georgia law, to the effect of federal law on the situation 
thus created, Baconsfield was “dedicated” to all.

I f  Baconsfield, then, by the joint operation of Georgia 
and federal law, was “ dedicated” to use as a park by 
whites and by non-whites, then it seems plain that under 
Georgia law that dedication is not retractable. Granting 
arguendo that the “purpose” of Senator Bacon’s trust 
has failed (but see above, point B), the uses to which 
the park is “ dedicated” have not failed.

Some confusion may be created by the juxtaposition 
of the concepts of “dedication” and “ trust.” These con­
cepts are not at war under Georgia law—or, for that 
matter, under Anglo-American law in general. Section



57

69-504, just quoted, makes it plain that Georgia law 
sees no difficulty in lands being both under trusteeship 
and dedicated to the public. For the “appropriate con­
veyance” under §69-504 may be in fee simple or in trust, 
but which ever of these sorts of conveyances is chosen, 
the lands are to be “ dedicated in perpetuity to the pub­
lic use. . . .” There is no difficulty about this double 
aspect of the creation of a park. The legal title to land 
may be held by a trustee, and the duties of his (or its) 
trusteeship may include, for example, maintenance, while 
simultaneously the land may be “ dedicated”  to the public, 
with public easements upon it. These arrangements are 
complementary and not contradictory. Somebody, whether 
or not a trustee, always holds underlying title to land 
over which easements run.

The holding, then, that Baconsfield was not treated as 
“dedicated” to the public, with all that must imply under 
Georgia law, rests essentially on a wrong reading or 
disregard of the federal command of equality. Such a 
holding obviously cannot be allowed to stand.

The thoroughness of the “dedication” in this case is 
emphasized (if emphasis be needed) by reference to the 
public subsidies and aids this park has received. The 
record abounds with details of maintenance, tax exemp­
tion, and even substantial federal aid. State power com­
pelled and solicited these aids, and can have done so 
only on the theory that the park was “dedicated” as a 
park. It would be anomalous in the extreme for that 
same state power, acting through a different agency, 
now to be allowed to say that this park was not, after 
all, “ dedicated” to a public use. And if it was dedicated 
to a public use, it was necessarily dedicated to use by 
all races, under the Fourteenth Amendment.



58

CONCLUSION

For the foregoing reasons it is respectfully submitted 
that the petition for writ of certiorari should be granted.

Respectfully submitted,

W illiam H. A lexander
859% Hunter Street, N.W. 
Atlanta, Georgia 30314

Jack Greenberg 
J ames M. Nabrit, III 

10 Columbus Circle 
New York, New York 10019

Charles L. B lack, Jr.
169 Bishop Street
New Haven, Connecticut 06511

A nthony G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pennsylvania 19104

Attorneys for Petitioners



APPENDIX



State of Georgia

SuPEBIO B COUBTS OB THE M a CON JUDICIAL C lBCU IT

Macon, Georgia 

December 1, 1967

Chamber of:
Hal Bell
C. Cloud Morgan 
Geo. B. Culpepper, III 

Judges

Mr. Willis Spark, III 
Jones, Sparks, Benton & Cork 
Attorneys at Law 
First National Bank Building 
Macon, Georgia

Mr. William H. Alexander 
Ward, Moore & Alexander 
Attorneys at Law 
859% Hunter Street, N.W.
Atlanta, Georgia 30314

Mr. George C. Grant 
Martin, Snow, Grant & Napier 
Attorneys at Law 
700 Home Federal Building 
Macon, Georgia

Mr. Trammell F. Shi 
Shi & Baley 
Attorneys at Law 
Southern United Building 
Macon, Georga

Letter O p i n i o n  o f  S u p e r i o r  C o u r t

Bibb, Crawford 
Peach and Houston 

Counties



2a

Honorable George J. Hearn, III 
Assistant Attorney General 
State Capitol 
Atlanta, Georgia

Ee: Charles E. Newton, et al 
v. City of Macon

(Renewed Baconsfield Proceeding) 

No. 25864, Bibb Superior Court

L etter  Opinion o f  S uperior Court

Gentlemen:

In passing upon the motion for summary judgment filed 
by the heirs of Senator Bacon I see no need to recite any 
of the pleadings, history or rulings of this Court, the Su­
preme Court of Georgia, or the Supreme Court of the 
United States, except as they may bear directly upon the 
issue raised by the motion.

The final order and decree of this court of March 10, 
1964, was appealed to and affirmed by the Supreme Court 
of Georgia on September 28, 1964, and on writ of certiorari 
the United States Supreme Court reversed the judgment 
of the Supreme Court of Georgia on January 17, 1966. 
Thereafter on March 14, 1966, the judgment of the United 
States Supreme Court was made the judgment of the Su­
preme Court of Georgia, reversing and vacating the prior 
judgment of this Court. The Georgia Supreme Court re­
manded the case of this court for further proceedings con­
sistent with the decision of the Unted States Supreme 
Court and specifically directed this court to pass on con­
tentions of the parties not passed on previously.

In its decision of June 17, 1966 the United States Su­
m-erne Court ruled that Baconsfield could no longer he



3a

operated for the exclusive benefit of white persons and 
ruled this was so whether the City of Macon remained as 
trustee or whether private trustees were appointed.

Movants contend that because of the January 17, 1966 
decision of the United States Supreme Court Senator 
Bacon’s trust became unenforceable and Baconsfield and 
the funds held for its support reverted at that time into 
Bacon’s estate by operation of law. They contend further 
that the Supreme Court of Georgia on March 14, 1966 
recognized this had occurred when the court expressed the 
opinion that the “ sole purpose for which this trust was 
created has been terminated.” Movants contend that this 
judgment of the Supreme Court of Georgia declaring what 
had transpired in regard to the title is now the law of the 
case and further that it remains only for this court at this 
time to give effect to said reversion of title.

Other relief sought in the motion for summary judgment 
is briefly stated as follows:

(1) The dismissal of the City of Macon as not now being 
a necessary party to this proceeding,

(2) An order allowing the Successor Trustees, Hugh M. 
Comer, Lawton Miller and B. L. Register to be relieved 
of any further duties except to account for the legal title 
to the trust properties, assets, etc.

(3) That the members of the Board of Managers be 
allowed to file an accounting of their acts and of the funds 
in their hands and then be released and acquitted from 
further liability,

(4) That one or more persons he appointed to take pos­
session and custody of the properties, assets and funds of 
the charitable trust and to protect and manage the same

L etter  Opinion o f  S uperior Court



4a

under the further orders and directions of this Court and 
to transfer the title thereto and possession to the persons 
entitled to receive the same and

(5) That the relief prayed for by intervenors, Reverend 
E. S. Evans, et al, be denied.

Intervenors, Reverend E. S. Evans, et al, the only parties 
to object, appeared and filed objections to the motion for 
summary judgment and submitted evidence concerning the 
expenditure of tax monies of the City in the operation and 
maintenance of Baconsfield Park and in the building of a 
swimming pool located on the property. Evidence was also 
offered concerning the expenditure of funds by the Federal 
Government under the W.P.A. program in the furnishing 
of labor in the construction of Baconsfield clubhouse.

With reference to the evidence submitted by both the 
intervenors and movants there is little, if any, dispute as 
to the facts. The evidence is conclusive that Baconsfield 
park was at all time under the direct control and supervi­
sion of the Board of Managers and that funds realized 
from the handling of commercial properties were used in 
the improvement and operation of the park.

I have carefully considered the pleadings, the evidence 
and the brief of argument submitted by counsel for the 
intervenors, Reverend E. S. Evans, et al, and also the 
pleadings, the evidence and the brief of argument sub­
mitted by counsel for the Bacon heirs.

It is my considered opinion that when the Supreme Court 
of the United States rendered its decision in Evans v. New­
ton, 382 U. S. 296, 86 S. Ct. 486, 15 L.E. 2nd, 373 (1966) 
holding in a divided opinion that Baconsfield might not in 
the future be operated as a facility for the sole benefit 
of white persons, as specified in Senator Bacon’s will, the

L etter  Opinion o f Superior Court



5a

trust failed, and the property reverted to Bacon’s estate 
by operation of law.

It is my opinion, contrary to the contention of counsel 
for the intervenors, Reverend E. S. Evans, et al, that the 
doctrine of cy pres is not applicable to Baconsfield. There 
is no general charitable purpose expressed in the will. It is 
clear that the testator sought to benefit a certain group of 
people, i.e., “ the white women, white girls, white boys, and 
white children of Macon” , and it is clear that he sought 
to benefit them only in a certain way, i.e., by providing them 
with a park or playground. Senator Bacon could not have 
used language more clearly indicating his intent that the 
benefits of Baconsfield should be extended to white persons 
only, or more clearly indicating that this limitation was 
an essential and indispensable part of his plan for Bacons­
field.

I have considered the argument of counsel for the inter­
venors, Reverend E. S. Evans, et al, concerning their con­
tention that “ Baconsfield Park has been dedicated to the 
public and a public easement has been created which can­
not be defeated merely by the termination of the trust” . 
In my opinion it is clear that there has been no dedication 
of Baconsfield as a park for the use of the general public. 
The trust was created for a limited purpose, i.e., for the 
sole, perpetual and unending, use benefit and enjoyment 
of the white women, white girls, white boys and white 
children of Macon. It is therefore my opinion that the 
concept of dedication raised by counsel for the intervenors 
is without application in this case.

With reference to the contention of the intervenors in 
regard to the Bacon heirs being estopped, there is nothing 
in the record to support this contention.

It is my opinion that Shelley vs Kramer does not support 
the position of the intervenors. It is further my opinion that

L etter  Opinion o f S uperior Court



6a

no federal question is presented in regard to the reversion 
of Baconsfield, bnt rather this property has reversed by 
operation of law in accordance with well settled principles 
of Georgia property law.

Counsel for the Bacon heirs will please prepare an order 
in accordance with the above for the Court’s consideration, 
furnishing a copy of the same to counsel for the other 
parties.

Yours very truly,

0. L. L ong
0. L. Long, J.S.C.M.C. Emeritus

Filed in Office, 14 day of May, 1968 
Lillian Lavine, Deputy Clerk

L etter  Opinion o f Superior Court



7a

I n the

SUPERIOR COURT 
op B ibb County, Georgia

No. 25864

Chables E. Newton, et  al.,

City op Macon, et  al.

S u p e r i o r  C o u r t  O r d e r  a n d  D e c r e e

Obdeb and Decbee

The above case was heard on Motion for Summary Judg­
ment filed November 10, 1966, in behalf of Guyton G. 
Abney, J. D. Crump, T. I. Denmark and Dr. W. G. Lee 
as Successor Trustees under Item 6th of the will of Augus­
tus Octavius Bacon, deceased, who for convenience will be 
referred to as Senator Bacon. Said case was heard upon 
remand from the Supreme Court of Georgia for further 
proceedings in this Court consistent with its decision and 
with the decision of the Supreme Court of the United States 
of January 17, 1966, with specific direction to this Court 
to pass on contentions of the parties not passed on previ­
ously.

Said Motion and the rule nisi issued thereon were duly 
served upon all parties and responses thereto were filed. 
Various witnesses were examined by deposition and both 
supporting and opposition affidavits were filed. Additional 
parties were made and the Motion was duly assigned for



8a

hearing and was heard in open court. The parties through 
their respective counsel made oral arguments and within 
the time allowed for that purpose by the Court filed written 
briefs, all of which were carefully considered.

Having taken the case under consideration the Court on 
December 1, 1967, advised all attorneys of record by letter 
of its findings and conclusions. A  copy of said letter of 
December 1, 1967, is filed with the Clerk as a part of the 
record in said case, and by reference is incorporated 
herein as findings and conclusions of the Court. This 
decree is entered pursuant to and in accordance with the 
findings and conclusions therein and herein made.

It i s  n o w , t h e r e f o r e , c o n s i d e r e d , o r d e r e d  a n d  d e c r e e d

B Y T H E  COURT AS F O L L O W S :

(1) The Court has jurisdiction of the subject matter of 
the case and of the parties, and all necessary parties are 
properly before the Court. All parties have been given 
opportunity to be heard, and to present either supporting 
or opposition affidavits or responses, and all parties have 
been heard upon the issues involved. 2

(2) Rev. E. S. Evans and others as members of the 
Negro race were allowed to intervene in opposition to the 
complaint on behalf of themselves and other Negroes simi­
larly situated as a class, and as intervenors to challenge 
the validity of certain of the provisions of the will of 
Senator Bacon and to seek relief against the petitioners. 
Upon appeal by them from the prior judgment of this 
Court the Supreme Court of the United States on January 
17, 1966, ruled that Baconsfield Park could no longer be 
operated for the exclusive benefit of white persons as 
clearly provided by Senator Bacon’s will, and that ruling

S uperior Court Order and D ecree



9a

is now the law of this case. Consistent with the further 
provisions of this decree no sufficient cause is shown for 
the grant of other or further relief to said intervenors, 
and the relief prayed for by them is denied.

(3) By virtue of and upon the aforesaid decision of the 
United States Supreme Court of January 17, 1966, the 
essential purpose of the trust established by Items 9th and 
10th of Senator Bacon’s will was voided and became im­
possible of performance and said trust thereupon failed 
and was terminated.

The Court finds and concludes, contrary to the conten­
tion of counsel for the intervenors, Reverend E. S. Evans, 
et al., that the doctrine of cy pres is not applicable to 
Baconsfield. There is no general charitable purpose ex­
pressed in the will. It is clear that the testator sought 
to benefit a certain group of people, i.e., “ the white women, 
white girls, white boys, and white children of Macon” , and 
it is clear that he sought to benefit them only in a certain 
way, i.e., by providing them with a park or playground. 
Senator Bacon could not have used language more clearly 
indicating his intent that the benefits of Baconsfield should 
be extended to white persons only, or more clearly indi­
cating that this limitation was an essential and indis­
pensable part of his plan for Baconsfield.

The Court has considered the argument of counsel for 
the intervenors, Reverend E. 8. Evans, et al., concerning 
their contention that “Baconsfield Park has been dedicated 
to the public and a public easement has been created which 
cannot be defeated merely by the termination of the trust.” 
It is clear that there has been no dedication of Bacons­
field as a park for the use of the general public. The trust 
was created for a limited purpose, i.e., for the sole, per­

S uperior Court O rder and D ecree



10a

petual and unending, use, benefit and enjoyment of the 
white women, white girls, white boys and white children 
of Macon. It is therefore the Court’s conclusion that the 
concept of dedication raised by counsel for the inter- 
venors is without application in this case.

With reference to the contention of the intervenors in 
regard to the Bacon heirs being estopped, there is nothing 
in the record to support this contention.

It is my opinion that Shelley vs. Kraemer, 334 U.S. 1, 
68 S.Ct. 836, 92 L.Ed. 1161 (1948), does not support the 
position of the intervenors. It is further my opinion that 
no federal question is presented in regard to the reversion 
of Baconsfield, but rather this property has reverted by 
operation of law in accordance with well settled principles 
of Georgia property law.

Under the laws of the State of Georgia on January 17, 
1966, the title to and right to possession of the trust assets 
reverted automatically by operation of law to Senator 
Bacon, or to his heirs or estate, and it is declared and 
adjudged that such title to and right to possession has so 
reverted.

(4) Under the decision and mandate of the Supreme 
Court of Georgia reversing the prior judgment of this 
Court the trust property was left without a trustee. In 
view of the failure and termination of said trust and the 
reversion by operation of law of the trust assets, it is not 
necessary that there be a trustee. 5

(5) The prior order of this Court accepting the resig­
nation of the City of Macon as Trustee and appointing 
Successor Trustees is vacated. Nevertheless, since the 
City of Macon has no trust assets in its hands to be ac-

Superior Court Order and D ecree



11a

counted for, and has reaffirmed its resignation and has 
again announced its refusal to serve as Trustee, and re­
quested its discharge from the ease, no further order of 
this Court with respect to the resignation of the City of 
Macon is necessary. The City of Macon having no further 
trust duties to perform or trust assets to be accounted for 
is dismissed as a party to this case.

(6) The Successor Trustees who were appointed by this 
Court have acted under their appointment as de facto 
Trustees and their acts and doings in that capacity are 
ratified and approved insofar as they have acted in ac­
cordance with the direction and authority given to them 
by virtue of their appointment. Specifically this includes 
the appointment by them of the Board of Managers to 
perform the duties and functions imposed upon the Board 
of Managers established under Senator Bacon’s will and 
the acts and doings of said Board of Managers are simi­
larly ratified and approved insofar as they have acted in 
accordance with the terms of Senator Bacon’s will appli­
cable to them and under the authority and directions given 
to them by this Court. 7

(7) The Successor Trustees appointed by this Court and 
the Board of Managers appointed by them with the ap­
proval of this Court shall within thirty days after the date 
of this order file in the office of the Clerk of this Court 
detailed reports of their acts and doings in their respec­
tive capacities, (1) listing and identifying the trust assets, 
properties and funds in their hands, and (2) showing and 
accounting for their receipts and disbursements. Objec­
tions to said reports and accountings may be made by any 
party desiring to object thereto within thirty days from

Superior Court Order and D ecree



12a

the date of the filing of said reports and accountings, and 
upon the expiration of said periods of time said reports 
and accountings shall be submitted to the Court for its 
approval or disapproval. Copies of said reports and ac­
countings shall be served upon all attorneys of record in 
this case who shall be notified of the date of filing and of 
the time within which objections thereto may be filed. 
Upon approval of such reports and accountings the Suc­
cessor Trustees appointed by this Court and the Board of 
Managers appointed by them shall be thereupon discharged 
and dismissed as parties to this litigation.

(8) For the purpose of receiving the reports and ac­
countings to be made by the Successor Trustees and by 
the Board of Managers, as above described, and for the 
further purpose of preserving and administering the 
assets, property and funds until this decree becomes final, 
Guyton G. Abney and Willis B. Sparks, Jr. are named and 
appointed as Receivers. Copies of said reports and ac­
countings shall be served upon them as upon other parties, 
and objections thereto may be filed by them as by other 
parties. Upon the filing of said reports and accountings 
all cash funds and other assets of the trust shall be paid 
over to the Receivers and receipted for by said Receivers, 
to be held and administered by them under the further 
direction of this court. 9

(9) Said Receivers are authorized and empowered to 
hold and manage the trust properties and assets under the 
further orders and directions of the Court until such time 
as they are directed by this Court to deliver and pay 
them over to the person or persons entitled thereto after 
this decree has become final. The Receivers are authorized

S uperior Court O rder and D ecree



13a

to recognize and continue in effect any and all contracts 
or other commitments with respect to the trust properties 
heretofore entered into or made by the Successor Trustees, 
or their predecessor trustee, or by the Board of Managers 
at any time and however constituted, whether de jure or 
de facto, and to enter into other contracts and commit­
ments normally incident to the management and preserva­
tion of the trust properties which are limited in duration 
to not exceeding one year, all without the necessity of 
seeking further direction by or approval of the Court. 
Subject to the right of any party to this case to file objec­
tions thereto which will be heard by the Court, the Re­
ceivers may apply for and obtain authority to enter into 
contracts and commitments extending longer than one year.

(10) The aforesaid Successor Trustees and members of 
the Board of Managers shall not receive any compensation 
for services heretofore or hereafter rendered by them but 
shall be allowed all reasonable and proper costs and ex­
penses which they have incurred, including the cost and 
expense of employing agents or other employees in the 
performance of their duties, and including costs, expenses 
and obligations incurred by them in the conduct of this 
litigation, specifically including the compensation of at­
torneys employed by them, or by their predecessors, in 
the conduct of this litigation or in connection with the 
management and operation of the properties and assets 
of said trust. Application shall be made to this Court for 
the approval of the compensation to be paid to their at­
torneys, and appropriate order will be made for such 
payment either out of the funds in the hands of the Re­
ceivers or as a charge upon the properties and assets in

S uperior Court Order and D ecree



14a

the hands of the persons to whom said assets are dis­
tributed.

(11) The costs of this proceeding to be taxed by the 
Clerk including all prior costs on appeal are assessed 
against the properties in the hands of the Receivers and 
shall be paid out of these assets.

(12) Said trust having failed and terminated and the 
title to said assets having reverted by operation of law 
it is determined and decreed by the Court that said title 
has by operation of law vested as follows:

(a) One-half interest in Guyton G. Abney, J. D. Crump, 
T. I. Denmark and Dr. W. G. Lee, as Successor Trustees 
under Item 6th of the will of Senator Bacon for the benefit 
for life of Shirley Holcomb Curry, Marie Louise Lamar 
Curry and Manley Lamar Bacon Curry, surviving children 
of Augusta Lamar Bacon, deceased, and upon their deaths 
as provided therein.

(b) The remaining one-half thereof in equal shares in 
fee simple in Willis B. Sparks, Jr., Virginia Lamar Sparks, 
M. Garten Sparks and in The Citizens and Southern Na­
tional Bank and Willis B. Sparks, Jr. as Executors of the 
Will of A. 0. B. Sparks, deceased.

(13) This Court retains jurisdiction of this case for the 
purpose of acting upon the reports and accountings to be 
made by the Successor Trustees and successor Board of 
Managers, and giving direction with reference thereto, 
for the purpose of acting upon all applications of attor­
neys and others for compensation payable to them, for the 
purpose of receiving and acting upon reports and appli-

Superior Court Order and D ecree



15a

Superior Court Order and Decree

cations to be made by the Receivers appointed by this 
Court as hereinabove provided, and fixing their compen­
sation, for any other or further decree or order of this 
Court necessary or appropriate to the enforcement of this 
decree, and for any other purpose not inconsistent with 
the provisions of this decree.

This 14 day of May, 19C8.

0 . L. L ong 
J.S.C.M.C., Emeritus



16a

Supreme Court of Georgia Decided DEC—5 1968

24782. EVANS et al. v. ABNEY, Trustee, et al.

The trial court did not err in entering a summary judgment 
holding that the trust created by the will of Senator A. 0. 
Bacon had failed and that the trust property reverted to 
his heirs.

A rgued September 9, 1968—Decided December 5, 1968.

Equitable petition; trust. Bibb Superior Court. Before 
Judge Long, Emeritus.

William H. Alexander, Jack Greenberg, James M. Nabrit, 
III, for appellants.

Jones, Cork, Miller & Benton, Charles M. Cork, Frank C. 
Jones, Timothy K. Adams, Trammell F. F. Shi, George 
C. Grant, Arthur K. Bolton, Attorney General, for appel­
lees.

Mobley, Justice. This appeal is from an order of Bibb 
Superior Court which held that a trust created by Sena­
tor A. 0. Bacon in his will dated March 28, 1911, provid­
ing for a park in the City of Macon, to be called Bacons- 
field, for the benefit of “white women, white girls, white 
boys and white children of the City of Macon,” had failed 
and the property would revert by operation of law to the 
heirs at law of Senator Bacon.

The litigation was commenced in May, 1963, when Charles 
E. Newton and others, as members of the Board of Mana­
gers of Baconsfield, brought a petition against the City of 
Macon, as trustee under the will of Senator Bacon, and 
Guyton G. Abney and others, as successor trustees under

O p i n i o n  o f  G e o r g i a  S u p r e m e  C o u r t



17a

the will, holding assets for the benefit of residuary benefi­
ciaries, asserting that the City of Macon was failing and 
refusing to enforce the provisions of the will with respect 
to the exclusive use of Baconsfield, and praying that the 
city be removed as a trustee. Reverend E. S. Evans and 
others, Negro residents of the City of Macon, on behalf 
of themselves and other Negroes similarly situated, filed 
an intervention, contending that the restriction in the trust 
limiting the use of the park to white women and children 
was illegal, and praying hat the general charitable purpose 
of the testator be effectuated by refusing to appoint private 
persons as trustees. The heirs at law of Senator Bacon 
also intervened, praying that, if the relief sought by the 
original petitioners not be granted, the property revert 
to the heirs. The City of Macon in its answer alleged that 
it could not legally enforce segregation. The city later 
amended its answer, alleging that it had by resolution 
resigned as trustee under the will, and praying that its 
resignation be accepted by the court. The superior court 
accepted this resignation by the City of Macon and ap­
pointed new trustees. On appeal by the Negro intervenors 
from this judgment, this court affirmed the judgment of 
the trial court. Eor a full statement of the pleadings see 
Evans v. Newton, 220 Ga. 280 (138 SE2d 573).

The Supreme Court of the United States granted writ 
of certiorari and reversed the judgment of this court, hold­
ing in part: “Under the circumstances of this case, we 
cannot but conclude that the public character of this park 
requires that it be treated as a public institution subject 
to the command of the Fourteenth Amendment, regardless 
of who now has title under state law. We may fairly as­
sume that had the Georgia courts been of the view that 
even in private hands the park may not be operated for

Opinion o f Georgia Suprem e Court



18a

the public on a segregated basis, the resignation would 
not have been approved and private trustees appointed. 
We put the matter that way because on this record we 
cannot say that the transfer of title per se disentangled 
the park from segregation under the municipal regime 
that long controlled it.” Evans v. Newton, 383 U.S. 296, 
302 (86 SC 486, 15 LE2d 373).

The judgment of the Supreme Court of the United States 
was made the judgment of this court. The opinion of this 
court remanding the case to the trial court was in part as 
follows: “When this case was before us for review, we 
sustained the orders of the trial judge accepting the res­
ignation of the City of Macon as trustee of Baconsfield 
and appointing new trustees. The Supreme Court of the 
United States, in the general reversal of the judgment of 
this court, did not, in the majority opinion, make any 
specific ruling on the right of the City of Macon to resign 
as trustee or that new trustees could not be appointed. 
The resignation of the City of Macon as trustee of Bacons­
field because of its inability to carry out the provisions 
of the trust being an accomplished fact (and we know of 
no law that could compel it to act as trustee) and the 
order of the court appointing new trustees having been 
reversed, the trust property is without a trustee. Even if 
new trustees were appointed, they would be compelled to 
operate and maintain the park as to Whites and Negroes 
on a non-discriminatory basis which would be contrary to 
and in violation of the specific purpose of the trust prop­
erty as provided in the will of Senator Bacon. Under 
these circumstances, we are of the opinion that the sole 
purpose for which the trust was created has become im­
possible of accomplishment and has been terminated. See

Opinion o f Georgia Suprem e Court



19a

Restatement (Second), Trusts §335. ‘Where a trust is 
expressly created . . . [and] fail[s] from any cause, a 
resulting trust is implied for the benefit of the grantor, 
or testator, or his heirs.’ Code §108-106(4)).” Evans v. 
Newton, 221 Ga. 870 (148 SE2d 329).

On remand of the case to the Superior Court of Bibb 
County, a motion for summary judgment was filed by Guy­
ton G. Abney and others, as successor trustees under the 
will of Senator Bacon. After consideration of depositions 
and affidavits, the Superior Court of Bibb County entered 
a summary judgment decreeing as follows: The relief 
prayed by Reverend E. S. Evans and other Negro inter- 
venors is denied. Under the decision of the United States 
Supreme Court the essential purpose of the trust creating 
Baconsfield in Senator Bacon’s will has become impossible 
of performance, and the trust has failed and is terminated. 
The doctrine of cy pres is not applicable to the trust cre­
ating Baconsfield. There is no general charitable purpose 
expressed in the will. It is clear that the testator sought 
to benefit a certain group of people, white women and 
children of Macon, and the language of the will clearly 
indicates that the limitation to this class of persons was 
an essential and indispensable part of the testator’s plan 
for Baconsfield. There has been no dedication of Bacons­
field as a park for the use of the general public. There 
is nothing in the record to support the contention that 
the Bacon heirs are estopped from claiming a reversion 
to them. The property has reverted by operation of law 
to these heirs. In view of the termination of the trust, it 
is not necessary that there be a trustee. The City of Macon 
having no further trust duties to perform or trust assets 
to account for, is dismissed as a party to the case. Cer­
tain acts and doings of the de facto successor trustees are

Opinion o f G eorgia Suprem e Court



20a

ratified and approved. Receivers are appointed. The title 
to the assets of the trust property are decreed to be in 
the heirs at law of Senator Bacon.

The Negro intervenors appealed from this judgment, 
enumerating as error each of the findings of the trial court, 
and the failure to find that Baconsfield should be oper­
ated as a public park on a non-discriminatory basis. The 
intervenors contend that they have been denied due process 
of law and equal protection of the laws under the Con­
stitution of the United States by the rulings made, and 
that the judgment does not follow the mandate of the 
Supreme Court of the United States.

1. The intervenors urge that the doctrine of cy pres 
should be applied to Senator Bacon’s will, and that the 
nearest effectuation of the intention of Senator Bacon 
would be to operate the park for the benefit of all citi­
zens of the City of Macon. The doctrine of cy pres is 
expressed by Code §108-202 as follows: “When a valid 
charitable bequest is incapable for some reason of execu­
tion 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.”

Senator Bacon in the provision of his will creating 
Baconsfield was specific in listing the persons for whose 
benefit the trust was created, the beneficiaries being “the 
white women, white girls, white boys and white children 
of the City of Macon.” He empowered the board of man­
agers to exercise their discretion in also admitting “ white 
men of the City of Macon, and white persons of other1 
communities.” He left no doubt as to his wish that the 
park be operated on a segregated basis. After expressing

Opinion o f G eorgia Suprem e Court



21a

Ms kind feeling's toward persons of the Negro race, he 
stated his reasons for limiting the beneficiaries of the trust 
to white persons as follows: “I am, however, without hesi­
tation in the opinion that in their social relations the two 
races should be forever separate and that they should not 
have pleasure or recreation grounds to be used or enjoyed, 
together and in common.”

The doctrine of cy pres can not be applied to establish 
a trust for an entirely different purpose from that in­
tended by the testator. Ford v. Thomas, 111 Ga. 493 (36 
SE 841). In the opinion of this court remanding the case 
to Bibb Superior Court it was held that the sole purpose 
for which the trust was created had become impossible 
of accomplishment and the trust had terminated. This was, 
in effect, a determination that the doctrine of cy pres 
could not be applied to Senator Bacon’s will so as to 
authorize the operation of the park for the benefit of the 
public generally. The interveners sought no review of this 
ruling by the Supreme Court of the United States, and it 
has become the law of the case. The ruling now under re­
view that the doctrine of cy pres can not be applied is 
consistent with the opinion of this court in Evans v. New­
ton, 221 Ga. 870, supra. 2

2. It is contended by the intervenors that Baconsfield 
wTas created under the provisions of Code § 69-504, author­
izing any person to convey, devise, give, or grant to any 
municipal corporation of this State, in fee simple or in trust, 
lands for park or pleasure grounds, limited to the use of 
one race only, or women and children of one race only, 
and that this Code section violates the equal protection 
clause of the Fourteenth Amendment of the United States 
Constitution. To hold that the trust provision of Senator 
Bacon’s will was made pursuant to an unconstitutional

Opinion o f G eorgia Suprem e Court



22a

Code section, would have the effect of making the trust 
impossible of performance (Smith v. DuBose, 78 Gfa. 413, 
434) (3 SE 309, 6 ASR 260), and thus cause a reversion 
under Code §108-106 (4).

. 3. It is contended by the intervenors that Senator Ba­
con’s will should be construed to grant all reversionary 
interest in Baconsfield to the City of Macon. This asser­
tion is based on language in the will vesting all title and 
interest, “ including all remainders and reversions,” to 
the City of Macon in trust for the persons specified.

Senator Bacon devised a life estate in the trust property 
to his wife and two daughters, and the language pointed 
out by the intervenors appears in the following provision 
of the will: “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 
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 hereinbefore described and bounded, both legal 
and equitable, including all remainders and reversions and 
every estate in the same of whatsoever kind, shall there­
upon vest in and belong to the Mayor and Council of the 
City of Macon, and to their successors forever, in trust 
etc.” This language concerned remainders and reversions 
prior to the vesting of the legal title in the City of Macon, 
as trustee, and not to remainders and reversions occurring 
because of a failure of the trust, which Senator Bacon 
apparently did not contemplate, and for which he made 
no provision. The reversion to the heirs at law is not 
under the terms of his will but occurs because of the pro­
vision of our law that where an express trust fails from

Opinion o f G eorgia Suprem e Court



23a

any cause, a resulting trust is implied for the benefit of 
the grantor, or testator, or his heirs. Code §108-106 (4).

4. It is asserted that the City of Macon acquired all 
of the interest in Baconsfield of the heirs and trustees of 
Senator Bacon by a deed dated February 4, 1920, and that 
the heirs and trustees are now estopped from asserting an 
interest in Baconsfield. This position is not tenable. The 
City of Macon does not assert that it has fee simple title 
to Baconsfield. Senator Bacon in Item 9 of his will desig­
nated certain property of his estate to form the park to 
be known as Baconsfield. This property was placed in trust 
in the hands of named trustees, first for the benefit of his 
wife and two daughters, and after their death, for recrea­
tional uses of white women and children. The testator 
expressly denied the trustee any right to sell the trust 
property. The deed of the trustees dated February 4, 1920, 
was made in consideration of $1,665 annually during the 
life of the remaining daughter of Senator Bacon and the 
expenditure of $650 annually by the city for the improve­
ment of the park, and its purpose was to allow the city 
to develop the property as a recreational area prior to 
the death of the remaining life tenant. It did not purport 
to convey any reversionary interest of heirs of Senator 
Bacon in the event the recreational park trust should 
terminate.

5. It is contended that, in obedience to the mandate of 
the United States Supreme Court, the City of Macon should 
be ordered re-instated as trustee of Baconsfield and di­
rected to operate the park on a nonsegregated basis. The 
opinion of the Supreme Court of the United States held 
that the park could not be operated for the public on a

Opinion o f Georgia Suprem e Court



24a

segregated basis and generally reversed the judgment of 
this court affirming the judgment accepting the resignation 
of the City of Macon as trustee and appointing new trus­
tees. The United States Supreme Court did not decide the 
question of whether the trust would terminate because of 
the inability of the trustees to effectuate the testator’s 
purpose in creating the trust. With the termination of the 
trust, there is no question as to the right of the City of 
Macon to resign as trustee, since there can be no trustee 
without a trust to administer. Neither can there be an 
estoppel against the acceptance of the city’s resignation as 
a trustee, where the trust has terminated, because of the 
expenditure of public money in the development of the 
park. Compare Bennett v. Davis, 201 Ga. 58 (39 SE2d 3).

6. The intervenors urge that they have been denied 
designated constitutional rights by the judgment of the 
Superior Court of Bibb County holding that the trust has 
failed and the property has reverted to Senator Bacon’s 
estate by operation of law. We recognize the rule announced 
in Shelley v. Kraemer, 334 U.S. 1 (68 SC 836, 92 LE1161, 
3 ALR2d 441), that it is a violation of the equal protec­
tion clause of the Fourteenth Amendment of the United 
States Constitution for a state court to enforce a private 
agreement to exclude persons of a designated race or color 
from the use or occupancy of real estate for residential pur­
poses. That case has no application to the facts of the 
present case.

Senator Bacon by his will selected a group of people, 
the white women and children of the City of Macon, to be 
the objects of his bounty in providing them with a recrea­
tional area. The intervenors were never objects of his 
bounty, and they never acquired any rights in the recrea­

Opinion o f G eorgia Suprem e Court



25a

tional area. They have not been deprived of their right 
to inherit, because they were given no inheritance.

The action of the trial court in declaring that the trust 
has failed, and that, under the laws of Georgia, the prop­
erty has reverted to Senator Bacon’s heirs, is not action 
by a state court enforcing racially discriminatory provi­
sions. The original action by the Board of Managers of 
Baconsfield seeking to have the trust executed in accord­
ance with the purpose of the testator has been defeated. 
It then was incumbent on the trial court to determine what 
disposition should be made of the property. The court cor­
rectly held that the property reverted to the heirs at law 
of Senator Bacon.

Judgment affirmed. AU the Justices concur.

Opinion o f Georgia Suprem e Court



26a

Order of Georgia Supreme Court

Supreme Court of Georgia

A tlanta, December 5,1968

The Honorable Supreme Court met pursuant to adjourn­
ment. The following judgment was rendered:

E. S. Evans et al. v. Guyton G. Abney, Trustee, et al.

This case came before this court upon an appeal from 
the Superior Court of Bibb County; and, after argument 
had, it is considered and adjudged that the judgment of 
the court below be affirmed. All the Justices concur.



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