Evans v. Newton Transcript of Record

    TRANSCRIPT OF RECORD

Supreme Court of the United States
OCTOBER TERM, 1965

No. 61

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

vs.

CHARLES E. NEWTON, ET AL.

ON WRIT OP CERTIORARI TO THE SUPREME COURT OF THE 
STATE OP GEORGIA

PETITION FOR CERTIORARI FILED MARCH 5, 1965 

CERTIORARI GRANTED APRIL 26, 1965



SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1965

No. 61

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

CHARLES E. NEWTON, ET AL.

ON w r it  of  certiorari to t h e  su pr e m e  co urt  of t h e
STATE OF GEORGIA

I N D E X
Original Print

Proceedings in the Supreme Court of the State of 
Georgia

Bill of exceptions ______________________________  1 1
Judge’s certificate to bill of exceptions __________  4 4
Record from the Superior Court, Bibb County,

Georgia_______________________________________  12 5
Petition_______________________________________  12 5

Exhibits A & B—Last will and testament of 
Augustus Octavius Bacon, dated March 28,
1911 and the codicil thereto, dated Septem­
ber 6, 1913_______________________________  19 10

Answer of defendant, City of Macon _________  47 32
Answer of defendants, Guyton G. Abney, J. D.

Crump, T. I. Denmark and Dr. W. G. Lee, as
successor trustees, etc_______________________  51 34

Motion for summary judgment ________________ 54 35
Motion of Rev. E. S. Evans et al. to intervene

and order thereon _________     56 36
Intervenors’ petition __________________________ 59 38

R ecord P ress, P rinters, New  Y ork, N. Y., J une  23, 1965



11 INDEX

Original Print
Record from the Superior Court, Bibb Comity,

Georgia— Continued
Amendment to plaintiff’s petition and order al­

lowing ______________________________________ 65 42
Petition of A. 0. B. Sparks, Willis B. Sparks, Jr.,

Virginia Lamar Sparks and M. Garten Sparks
for intervention and order allowing __________  69 45

Amendment to answer and cross bill and order
allowing ______________________________________  72 47

Amendment to answer of City of Macon and
order allowing ________________________________ 76 50
Exhibit A—Resolution of the Mayor and Coun­

cil of the City of Macon adopted February 4,
1964 _______________________________________  79 51

Exhibit B—Resignation of The City of Macon 
as Trustee Under Will of Senator Augustus
Octavius Bacon ____________________________  94 61

Amendment to intervenors’ petition and order
thereon _______________________________________  95 62

Order and decree ------------------------------------------------- 99 64
Resignation of The City of Macon as Trustee 

Under Will of Senator Augustus Octavius
Bacon ____________________    101 66

Acceptance of trust -----------------------------------------  102 67
Clerk’s certificate (omitted in printing) -----------  103 67

Motion to amend bill of exceptions --------------------  105 67
Second motion to amend bill of exceptions -----------  110 69
Motion of Charles E. Newton, et al. to substitute

parties defendant-in-error ____________________  115 70
Exhibit “A ”—Resignation of Board of Managers

of Baconsfield ----------------------------------------------  119 73
Exhibit “B”—Acceptance of Resignation of 

Board of Managers; Appointment of New 
Board of Managers and Acceptance of Ap­
pointment of New Board -------------------  120 74

Order granting motion to substitute parties de-
fendant-in-error, etc. ------------------------------------  122 75

Motion to add parties defendant-in-error and to 
deny defendants-in-error’s motion to substitute 
parties defendant-in-error ----------------------------------  125 77



INDEX

Original Print
Order granting second motion to amend the bill of

exceptions, etc. _______________________________  130 79
Order granting motion by Charles E. Newton et al,,

defendants-in-error, etc. ______________________  131 80
Opinion ________________________________________  132 81
Opinion, Almand, J. ____________________________  141 85
Judgment_______________________________________ 147 89
Motion for rehearing ____________________________ 148 89

Certificate of probable cause for rehearing _____ 151 91
Order denying motion for rehearing ....       153 92
Clerk’s certificate (omitted in printing) __________  154 92
Order extending time to file petition for writ of

certiorari _____________________________________ 155 93
Order allowing certiorari _______________________  156 94

iii



1

[fol. 1]
IN THE

SUPREME COURT OF THE STATE OF GEORGIA
Docket No. 22534

R ev . E. S. E v a n s , et al., Intervenors, Plaintiffs in error,
v.

C h a r le s  E. N e w t o n , et al., Defendants in error.

B il l  op E x c e ptio n s—Filed May 8,1964
To the Honorable Chief Justice and the Honorable Justices 

of the Supreme Court of Georgia:
Be It Remembered that on February 5, 1964, there came 

on for hearing in Bibb Superior Court before the trial 
judge, the Honorable Oscar L. Long, a Motion f or S u m , 
mary Judgment which had been submitted by the peti- 
tioners, deiendants-m-error, after which arguments and 
authorities were submitted to the Court by parties for 
each side. Thereafter, and on the 10th day of March, 1964 
the said trial judge entered his order and decree granting 
the said motion.

To the said Order of the said trial judge the plaintiffs- 
in-error did except, now except and assign the ruling of 
the trial judge as reflected in his decree and order as being 
contrary to the law and facts in the case. Plaintiffs-in- 
error contend that said Order denies equal protection to 
the plaintiffs-in-error and others similarly situated as guar­
anteed Dy'"£EOIoHrleeiith Amendment to the United States 
Constitution^'Tor W ^reason that said Order has the effect 
of prohibiting Negroes from the use of the park which is 
the subject matter of this litigation. Further, plaintiffs- 
in-error contend that said ruling, order and decree also 
denies to the plaintiffs-in-error, and others similarly situ­
ated, equal protection of the laws as guaranteed by the 
Fourteenth Amendment to the United States Constitution,



2

in that, this said Court has accepted the resignation of the 
City of Macon as Trustees"arid'appointed new Trustees for_
the purpose of enforcing^life provisions..of the Last Will
and'Testament of A. 0. Bacon which contains a facially 
discriminatory testamentary provision and which plaintini- 
Tn-error contend was originally commanded by the State.

Error is further assigned to the said Order on the ground, 
and the plaintiffs-in-error contend, that Section 108-202, 
Georgia Code Annotated, 1933 Edition, has the effect of 
requiring that the racially discriminatory provisions of the 
testamentary trust which is a part of the subject matter of 
this litigation be declared null and void. Said Code Section 
reads as follows:

108-202. (4604) Cy pres.—When a valid charitable be­
quest is incapable for some reason of execution in the 
exact manner provided by the testator, donor, or 
founder, a court of equity will carry it into effect in 
such a way as will as nearly as possible effectuate his 
intention. (110 Ga. 540, 543 (35 S.E. 639),)

[fol. 2] Plaintiffs in error further assign error to the said 
trial judge’s said ruling, order and decree on the ground 
that the Acts of Georgia of 1905, page 117, commonly re­
ferred to as Georgia Code Section 69-504, hereinafter set 
out, is violative of the equal protection clause of the Four­
teenth Amendment for the reason that said provision pre­
scribes racial discrimination and since the racially discrim­
inatory provision in A. O. Bacon’s Last Will and Testa­
ment, the plaintiffs-in-error contend, was dictated by that 
unconstitutional statute which received enforcement by said 
statute, all in violation of the Fourteenth Amendment to 
the United States Constitution, Sec. 1. Said Act reads as 
follows:

69-504 (890) Gifts for public parks or pleasure 
grounds.—Any person may, by appropriate convey­
ance, devise, give, or grant to any municipal corpora­
tion of this State, in fee simple or in trust, or to other 
persons as trustees, lands by said conveyance dedicated



3

in perpetuity to the public use as a park, pleasure 
ground, or for other public purpose, and in said con­
veyance, by appropriate limitations and conditions, 
provide that the use of said park, pleasure ground, or 
other property so conveyed to said municipality shall 
be limited to the white race only, or to white women and 
children only, or to the colored race only, or to colored 
women and children only, or to any other race, or to 
the women and children of any other race only, that 
may be designated by said devisor or grantor; and any 
person may also, by such conveyance, devise, give, or 
grant in perpetuity to such corporations or persons 
other property, real or personal, for the development, 
improvement, aSrmMQ^nMce"6rsaid property. (Acts 
1905, p. 117.)

Plaintiffs-in-error specify as material to a clear under­
standing of the errors complained of the following portions 
of the record, to w it:

1. Petition, filed May 4,1963.
2. Answer of the City of Macon, filed May 20,1963.
3. Answer of Guyton G. Abney, J. D. Crump, T. I. Den­

mark and W. G. Lee, as Trustee successors under 
the Last Will and Testament of A. 0. Bacon.

4. Motion for Summary Judgment dated May 27, 1963.
5. Motion of Rev. E. S. Evans, et al. to intervene, dated 

May 29,1963, with order thereon.
6. Interveners Petition filed June 18,1963.
7. Amendment to Petition filed January 8,1964.
8. Petition for intervention and order thereon dated 

January 8,1964.
9. Amendment to answer and Cross Bill, with order 

thereon, filed January 8,1964.
10. Amendment to answer of City of Macon, filed Febru­

ary 5,1964.



4

11. Amendment of Interveners’ Petition, filed March 5, 
1964.

12. Trial Judge’s Order and Decree dated March 10, 
1964.

13. Resignation of City of Macon as Trustees.
14. Acceptance of Trust filed March 12,1964.

[fol. 3] And Now, come Rev. E. S. Evans, et al., within 
the time provided by law, and assigning error on all the 
rulings complained of as being contrary to law, tender this 
their Bill of Exceptions and pray that the same may be 
certified to and transmitted to the Supreme Court of 
Georgia in order that the alleged errors may be considered 
and corrected, all as provided by law.

Donald L. Hollowell, William II. Alexander, Attor­
neys for Plaintiffs-in-error.

859% Hunter St. N.W., Atlanta, Georgia 30314, Jackson 
5-8372.

[fol. 4]
J u d g e ’s C e r tif ic a te  to B il l  of E x c e ptio n s  

—April 14,1965
I do certify that the foregoing Bill of Exceptions was 

tendered to me on the 9th day of April, 1964, that the same 
is true and specifies all the evidence, and specifies all of 
the record material to a clear understanding of the errors 
complained of and the Clerk of the Superior Court of Bibb 
County is hereby ordered to make out a complete copy of 
such parts of the record in said case as are in this Bill of 
Exceptions specified, and of the record in said case as are 
in this Bill of Exceptions specified, and certify the same as 
such and cause the same to be transmitted to the Supreme 
Court of Georgia, that the errors alleged to have been com­
mitted may be considered and corrected.

This 14 day of April, 1964.
0. L. Long, Judge, Bibb Superior Court.



5

[fol. 5] The within and foregoing Bill of Exceptions ten­
dered this 9 day of April, 1964.

0. L. Long
[fol. 6] Acknowledgments of Service by Attorneys for De- 
fendants-in-Error (omitted in printing).
[fol. 8] Clerk’s Certificate to foregoing paper (omitted in 
printing).

[fol. 10] [File endorsement omitted]

[fol. 12]
I n t h e  S u per io r  C o u rt , B ibb  C o u n t y , G eorgia 

P e t it io n — F iled  May 4,1963
Charles E. Newton, Mrs. T. J. Stewart, Frank M. Wil­

lingham, Mrs. Francis K. Hall, George P. Rankin, Jr., Mrs. 
Frederick W. Williams and Mrs. Kenneth W. Dunwody, all A  
of said State and County, in their respective capacities Zs 
members of the Board of Managers of BaeonMield. herein­
after referred to as the ■‘ Board", bring this bill in equity 
and name as defendants the following parties: j ‘ mt.

Tlle ( i '-v 01 Maeon> j n .its capacity as Trustee under 
Item IX of the East Will and Testament of Augustus 
Octavius Bacon, deceased:
Guyton G. Abeny, J. D. Crump, T. I. Denmark and 
Dr. W. G. Lee, as successor Trustees under the Last 
W ill and Testament of Augustus Octavius Bacon, De­
ceased, holding assets for the benefit of certain desig­
nated beneficiaries who will take the residuary estate 
under the terms of said Will, but subject to the pro­
visions of Item IX  thereof as herein more fully set 
forth.

1 .

This Honorable Court has jurisdiction of this proceed­
ing in that all of the defendants against whom substantial 
relief is prayed herein are residents of Bibb County,
[fol. 13] Georgia; and for the further reason that the trust 
assets, as hereinafter described and which form the subject



6

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

2.

Your petitionersjare the duly qualified and acting mem­
bers of the Board of Managers of BacolSfliJld;" erefiTSTaSr 
.established under the provisions of Item IX  of said Last 
Will and Testament of Augustus Ocavius Bacon.

3.
The defendant the City of Macon is a municipality duly 

created by Act of the Legislature of the State of Georgia, 
and, under said Item IX  of said Will, holds, as Trustee, 
the legal title to that tract or parcel of land situate in 
Macon, Bibb County, Georgia, known as “ Baconsfield” , and 
more fully described in said Will.

4.
The defendants Guyton G. Abney, J. D. Crump, T. I. 

Denmark, and Dr. W. G. Lee are successor Trustees under 
said Last Will and Testament, and codicil thereto, and are 
duly qualified and now acting in such capacities, respec­
tively.

5.
The Last Will and Testament of Augustus Octavius 

Bacon, dated the 28th day of March, 1911, and the codicil 
thereto, dated theJ^EL''di^''b f’1gm5tgB5Ber7T913, have been 
duly probated in solemn forffi ih lhe Court of Ordinary of 
[fol. 14] Bibb County, Georgia, a copy thereof being at­
tached hereto as Exhibits “A ” and “B ” and by reference 
made a part hereof.

6.

Under Item IX  of said Will the testator conveyed all his 
right, title and interest in and to Baconsfield, the parcel 
referred to being fully described in said Item IX, unto



7

“ The Mayor and Council of the City of Macon”, the then 
designation of the same municipal corporation which is 
now the “ City of Macon” .

7.
Your petitioners show that said property was so con­

veyed to the defendant the City of Macon “ in trust for the 
sole, perpetual and unending use, benefit and enjoyment of 
the white women, white girls, white boys and white chil­
dren of the City of Macon, to be by them forever used and 
enjoyed as a park and pleasure ground” , subject however, 
to the restrictions, government, management, rules and 
control of the Board of Managers of Baeonsfield, your peti­
tioners herein.

8.

Although under the provisions of said Will, the defen­
dant the City of Macon, as Trustee of said properties, is 
under a paramount duty to carry out the provisions of 
said trust, the Board has complete and unrestricted con­
trol and management of said property, with power to make 
all needful regulations for the preservation and improve­
ment thereof, and rules for its use and enjoyment, with 
power to exclude at any time any person or persons of 
either sex, who may be deemed objectionable, or whose 
[fol. 15] conduct or character may by said Board be ad­
judged or considered objectionable, or such as to render 
for any reason in the judgment of said Board their pres­
ence in said grounds inconsistent with or prejudicial to the 
proper and most successful use and enjoyment of said 
property for the purposes contemplated by the testator.

9.

As directed in said Will, the Board has over the years 
confined the exclusive use of Baeonsfield to those persons 
designated in said Will, although under the provisions 
thereof it has not objected to the use of said property by



8

the white men of the City of Macon and white persons of 
other communities.

10.

Your petitoners show, however, that although they have 
called the attention of the defendant the City of Macon to 
the provisions of Item IX  of said Will and its duties as 
Trustee thereunder, said defendant is now failing and re­
fusing to carry out and enforce the provisions of said 
Will with respect to the exclusive use of Baconsfield by 
the white women of the City of Macon and white boys and 
white girls, and white men when so authorized by the 
Board, but on the contrary, has recently permitted and is 
now permitting the continuous use of said premises by 
members of the colored race, in direct contravention of the 
terms of the trust created by the testator, and under which 
said defendant holds title to Baconsfield, and in complete 
disregard and violation of the explicit mandate of the testa- 
[fol. 16] tor as set forth in said Will.

11.

Your petitioners are without power to enforce the terms 
oi said trust with respe. t to the aforesaid use of Bacous- 
field,..except to request the defendant the-City of Macon 
to comply with the terms of the Trust. If, however, a new 
Trustee, or new“''Truitees]':'' are appointed by this Court 
then, if necessary, said Trustee or Trustees, by the exer­
cise of a writ of mandamus or otherwise could require the 
defendant the City of Macon or other proper law enforce­
ment officers to carry out their duties so that the terms of 
the trust, which the City of Macon now is violating in its 
capacity as Trustee, may be carried out by the new Trustee 
or Trustees.

12.

Your petitioners show that the aforesaid breach of duty 
on the part of the defendant the City of Macon, as Trus-



9

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

13.
Your petitioners bring this petition for the purpose of 

removing the defendant the City of Macon as Trustee of 
said properties, and recommend to this Honorable Court, 
as a court of equity, that it appoint three (3) freeholders, 
residents of the City of Macon, to serve as successor Trus­
tees to defendant the City of Macon and who in their capac­
ity as Trustees, being private citizens, can and will under 
the law carry out the testator’s wishes and intent with re- 
[fol. 17] spect to the use and enjoyment of Baconsfield, 
and the purposes for which said trust was established.

Wherefore, your petitioners pray:
(a) That process do issue in terms of law;
(b) That the defendant the City of Macon be removed 

as Trustee under said W ill;
(c) That this Court, as a court of equity, enter a decree 

appointing one or more freeholders, residents of 
the City of Macon, to serve as Trustee or Trustees 
under the Last Will and Testament of Augustus 
Octavius Bacon, deceased, with power on the part of 
the Board to name, subject to the approval of this 
Court, from time to time, a successor Trustee or 
Trustees upon the death or disqualification of any 
such Trustee, or should any such Trustee for any 
reason cease to serve in such capacity;

(d) That legal title to Baconsfield, as well as to any 
other assets now held by the defendant the City of 
Macon, in its capacity as such Trustee, be decreed 
to be in the Trustee or Trustees so appointed by 
this Court, and in their respective successor or suc­
cessors, for the uses, purposes and trusts originally 
declared by the testator, Augustus Octavius Bacon;



10

(e) That your petitioners have such other and further 
relief as the Court may deem fit and proper.
Jones, Sparks, Benton & Cork, Attorneys for Peti­

tioners.
[fol. 18] Duly sworn to by Frank M. Willingham, jurat 
o?nitted in 'printing.

[fol. 19]
E x h ib it  “ A ” to P e t it io n

COPY OF LAST WILL AND TESTAMENT OP 
AUGUSTUS OCTAVIUS BACON

I, Augustus Octavius Bacon, of said State and County, 
being in perfect health and of sound and disposing mind 
and memory, and desiring to make disposition, while so 
capacitated, of the property which, under Providence, has 
been the fruit solely of my personal industry and toil, do 
hereby make, publish and declare this my last Will and 
Testament, hereby expressly and entirely revoking and 
cancelling all other Wills heretofore made by me.

Item 1st
I commit my soul to God, in the humble hope that in 

spite of my many weaknesses, imperfections, faults and 
misdeeds, I shall be reuinited in a happy immortality with 
my kindred and friends, and particularly with the members 
of my immediate family, to whose happiness and welfare 
my life has been gladly and unsparingly devoted.

Item 2nd
I direct that my body be buried in Bose Hill Cemetery in 

the lot recently purchased by me, and that the bodies of 
my two ever-lamented sons, Lamar Bacon, who died on the 
21st day of December 1884 and Augustus Octavius Bacon, 
Jr., who died on the 27th day of November of the same 
year, shall be removed from the lot in which they are now



11

interred, and re-interred in the same lot now owned by me, 
and I further direct that my Trustees hereinafter named, 
or their successors, shall erect over the graves of myself 
and of my two sons, and also over the graves of all other 
[fol. 20] members of my family who shall die during the 
continuance of the trust herein created, monuments in their 
discretion suitable and appropriate therefor.

Item 3rd
I direct that, all my just debts be paid as early as prac­

ticable after my death.

Item 4th
My household and kitchen furniture in the main dwelling 

house, I give and bequeath to my wife, Mrs. Virginia Lamar 
Bacon, during the full term of her natural life, to be there­
after disposed of by her will as she may direct.

Item 5th
My household furniture in the little cottage commonly 

called “ The Hut” which I have personally occupied for 
years, as well as all of my books of every kind whereever 
located, together with all of my papers, pictures, jewelry, 
personal apparel and all other similar personal effects, I 
give to my two beloved daughters, Mrs. Mary Louise Bacon 
Sparks, and Mrs. Augusta Lamar Bacon Curry, to be di­
vided between them as they shall agree with each other, re­
questing that they give or transmit to their several chil­
dren such of said articles as it may be thought they would 
prize and preserve.

Item 6th
All of my estate both real and personal, of every descrip­

tion, and wherever situate, excepting therefrom only so 
much thereof as is otherwise disposed of by this Will, 
either in the clauses precedent or subsequent hereto, I 
[fol. 21] hereby give, bequeath and devise unto my tried



12

and trusted friends Alexander Lawton Miller, Custis Not­
tingham, Richard C. Jordan and Warren Roberts, all of 
my said bounty, in trust for the persons and purposes here­
inafter named and specified, with the estates and remain­
ders, and with the powers and limitations herein specifically 
designated and set forth as follows:

(a) Except as otherwise specified in this Will, all 
of the corpus of my said property—including both that 
held by me in trust, and that held in fee simple—• 
whether consisting of the property as it exists at the 
time of my death, or of the property into which it may 
be subsequently converted, or of property subsequently 
acquired for my estate, shall be held by the said Trus­
tees and their successors in trust for the sole use, bene­
fit and enjoyment of my wife, Mrs. Virginia Lamar 
Bacon, and of my two daughters, Mrs. Mary Louise 
Bacon Sparks and Mrs. Augusta Lamar Bacon Curry, 
for and during the term of their natural lives, and 
after their several deaths, with the several remainders 
as herein specified and provided, and to the uses, bene­
fit and enjoyment of the beneficiaries specified there­
under; and to fully effect the same, the said Trustees 
shall annually, so long as the said Mrs. Bacon, Mrs. 
Sparks and Mrs. Curry shall all remain in life, pay to 
each of them one-third of the net annual revenue de­
rived from said property after the payment of all 
[fol. 22] proper and legitimate expenses incident there­
to.

(b) Upon the death of Mrs. Virginia Lamar Bacon, 
I direct that all of the property specified and embraced 
within this Item 6th of my Will, including the one- 
third theretofore held in trust for Mrs. Virginia Lamar 
Bacon, shall be by the said Trustees divided into two 
equal parts, one of which parts shall be held by said 
Trustees in trust for the sole use, benefit and enjoy­
ment of my daughter, Mrs. Mary Louise Bacon Sparks, 
during the full term of her natural life with the re-



13

mainders in the same as hereinafter specified, and the 
net revenues from the same shall during her life be 
annually paid to her; and the other of said equal parts 
shall be held by said Trustees in trust for the sole use, 
benefit and enjoyment of my daughter, Augusta Lamar 
Bacon Curry during the full term of her natural life, 
with the remainders in the same as hereinafter speci­
fied, and the net revenue from the same, shall during 
her life, be annually paid to her,

(c) Upon the death of my daughter Mary Louise 
Bacon Sparks, I direct that the portion of the property 
embraced in this Item 6th of my Will and held in trust 
for her during the term of her natural life as afore­
said shall thereafter be held by said Trustees and their 
successors of the sole use, benefit and enjoyment of the 
[fol. 23] children now in life of my said daughter, Mary 
Louise Bacon Sparks. During the full term of the life 
of Willis B. Sparks, Senior, who married my said 
daughter, Mary Louise, with remainder after his death 
to the children of the said children now in life of my 
said daughter Mary Louise, to-wit: the children of 
Augustus Octavius Bacon Sparks, Willis B. Sparks, 
Junior; Virginia Lamar Sparks and of G-arton Sparks. 
But if at the time of the death of my daughter Mary 
Louise, and any one or more of the said children 
of my said daughter Mary Louise shall then be in 
life, the proportionate interest of each of said children 
of my daughter Mary Louise shall then vest in said 
child in fee simple, and thereupon the said trust to that 
extent shall cease and terminate. If during the life of 
the said Willis B. Sparks, Senior, and after the death 
of my daughter, Mary Louise, any one of her said chil­
dren hereinbefore named, shall die leaving neither hus­
band, nor wife, nor child, the interest of said child so 
dying shall thereupon descend to, and enure in equal 
parts to the benefit of the survivors of the said chil­
dren, and shall thereafter during the continuance of 
this trust, be held by the said Trustees for the use,



benefit and enjoyment of the survivors of the said 
children. The intent and purpose of this provision of 
my Will is that in no event and under no circumstances 
shall the trust cease and the title in and to said prop- 
[fol. 24] erty, or any part thereof, vest in fee simple, 
in either of my said daughter Mary Louise, or in any 
of her descendants, during the term of the natural 
life of the said Willis B. Sparks, Senior; and further 
that the remainders hereinbefore specified shall be 
preserved and take effect after the death of the said 
Willis B. Sparks, Senior.

(d) Upon the death of my daughter, Augusta Lamar 
Bacon Curry, I direct that the portion of the property 
embraced in this Item, and held in trust for her dur­
ing the term of her natural life as aforesaid, shall 
thereafter be held by said trustees and their successors, 
for the sole use, benefit and enjoyment of the children 
now in life of my said daughter, Augusta Lamar, 
to-wit: Shirley Holcomb Curry, Marie Louise Curry 
and Manly Lamar Curry, until her youngest child, 
the said Manly Lamar Bacon Curry, shall reach the 
age of twenty-one years, when the proportionate part 
of said property, shall vest in each of said children, 
and the trust, to the extent thereof in said property, 
shall thereupon cease and determine. But if either of 
the said named children or my said daughter, Augusta 
Lamar, shall, without leaving husband, or wife or child, 
die before the said Manly Lamar Bacon Curry shall 
reach, or would, if in life, reach the age of twenty-one 
years, the portion of the said child so dying shall 
thereafter be held in trust for the use, benefit and en­
joyment of the survivors of the said named children; 
[fol. 25] and if either of the said named children of 
my said daughter, Augusta Lamar, shall, before the 
said Manly Lamar reaches, or would, if in life, reach 
the age of twenty-one years, die leaving a child or chil­
dren in life, the portion of the child so dying shall be



15

held in trust for Ms or her surviving chiffPor children 
until they severally arrive at the age of twenty-one 
years.

Item 7th
To my said Trustees hereinbefore named, and to their 

successors, I give full power and authority to sell so much 
of the property of my estate as is embraced in the foregoing 
Sixth Item of this Will, both real and personal or any part 
thereof in their discretion, and to make conveyances there­
of, with full and perfect title free from said trusts, limita­
tions and remainders, to the purchasers of the same with­
out any authority asked from or granted by any court, or 
officer or any person whomsoever; said sales to be at 
either public or private sale, and no such terms as they in 
their discretion shall determine, and either with or without 
public or other advertisement of the same. But the net 
proceeds of all such sales, except as otherwise provided 
in this Will, shall be by the said Trustees reinvested in 
other real estate in the State of Georgia; which said real 
estate, when thus purchased for reinvestment, shall in each 
and every particular be held in the name of said Trustees 
or their successors subject to the same trusts and uses, 
and limited to the same estates and remainders as are 
specified in the foregoing Sixth Item of this W ill; and the 
[fol. 26] title deeds taken to said real estate shall, by refer­
ence to this Will express that the same is conveyed for said 
trusts and uses, and with the said estates and remainders 
as are herein specified. The books of said Trustees shall 
contain an accurate and complete statement of all real 
estate and other property sold and purchased on account of 
said trust estate, and also accurate accounts of all monies 
received and disbursed on account of said estate. I urge 
the said Trustees in this connection not to sell the real 
property of my estate hurriedly, but only when the same 
can be done to the best advantage, as the said property 
can in large part be used in such manner as to provide 
revenue, and the said property will in a reasonable short



16

time be very valuable for sale for residence purposes. The 
power to sell I intend to embrace in all its features and 
requirements and exemptions, the power to lease or rent.

Item 8th
During the lives of Mrs. Virginia L. Bacon and of my 

two daughters, Mary Louise Bacon Sparks and Augusta 
Lamar Bacon Curry, it is my will that they shall each 
receive annually through said Trustees, from my estate at 
least the full sum of $1,200.00. If the one third of the 
net annual revenues derived from my estate does not in 
any year furnish an amount sufficient to pay the full sum of 
$1,200.00 to each of them, I direct that the deficiency be 
made up by taking from the amount received from the 
sales of property embraced in Item Sixth of this Will, as 
much as will be necessary to give to each of the three, the 
said full sum of $1,200.00.
[fob 27] Upon the death of their mother, Mrs. Virginia 
Lamar Bacon, it is my will that each of my said daughters 
Mary Louise and Augusta Lamar, shall receive annually, 
through said Trustees, from my estate at least the sum of 
$1,800.00. If the property set apart for the use and enjoy­
ment of each of my said daughters upon the death of their 
mother, to be held as hereinbefore provided in trust for 
each of them during life, shall not in any year furnish an 
amount of net revenue sufficient to pay to each or either of 
them the full sum of $1,800.00, I direct that the deficiency 
be made up by sales of property so set apart; so that any 
deficiency in the annual amount due to my daughter Mary 
Louise shall be made up by sales of property set apart for 
her use; and in like manner any deficiency in the annual 
amount due to my daughter Augusta Lamar shall be made 
up by sales of property set apart for her use; and the 
property so sold shall, as hereinbefore provided, be thereby 
freed from said trusts and the estates, limitations and re­
mainders thereunder. The purpose of this provision is not 
to limit my wife and daughters to the amount named, but 
to ensure to them at least said amounts in case the net 
revenues shall be insufficient for that purpose.



17

| Item 9th j

I direct that there by said Trustees laid off and accurately 
defined and permanently marked by enduring monuments, 
the following described part of my farm which is situated 
in part within and part without the corporate limits of the 
City of Macon, and known as “Baconfield,” the same to be 
set apart and dedicated to the purposes, uses and enjoy- 
[fol. 28] ments as hereinafter more fully set forth and de­
tailed. The said part of the property thus set apart is 
bounded as follows: there is on the Southeastern part of 
my said farm a four acre rectangular tract which formerly 
belonged to James Pepper, and which is commonly known 
as the “ Pepper Place” the same having been purchased and 
added to my farm. For this description, beginning at the 
South-eastern corner of said rectangular tract, the boundary 
line of the property runs in a Northerly direction along the 
Eastern boundary line of said Pepper Place and thereafter 
in a direct prolongation of the same to a point nine hun­
dred and sixty-three feet and five-tenths from the said start­
ing point, thence in a slightly northwestern direction sixty- 
three feet and five-tenths, thence in a northerly direction 
three hundred and thirty-two feet across Boulevard Bacon- 
field to a point on the Western side of said Boulevard, 
thence three hundred and sixteen feet along the western 
border of said Boulevard to a point on the same immedi­
ately opposite the junction of said Boulevard and Gray 
Street, thence, in a direction a little West of North, twenty- 
four hundred and eighty feet to an elm tree, thence at right 
angles sixteen hungred and sixty-two feet to the bank of 
the Ocmulgee River, thence in a Southeasterly direction 
along the bank of said river thirty-three hundred and 
ninety seven feet, thence in a direct line to the Southwest 
corner of the said Pepper lot, thence four hundred and 
thirty-seven feet along the Southern boundary line of said 
Pepper lot to the original starting point; the said metes 
and bounds of the said tract of land being correctly platted 
and defined on a map of the same hereto attached, made 
[fol. 29] by H. D. Cutter and upon which for the purpose of



18

identification, I have endorsed my original signature. The 
larger part of the property thus described and bounded is 
a portion of a trust estate originating with me and created 
solely by me for the benefit of my wife and children during 
my life and for their benefit and use after my death in 
such estates and with such remainders as should be speci­
fied and directed by me in my last Will and Testament. For 
the purpose of carrying out fully the purpose and intent 
of the trust thus created, I hereby give, bequeath and de­
vise the said property consisting of the tract of land herein­
before described and bounded and platted on said map unto 
the said Trustees, viz. Alexander Lawton Miller, Custis 
Nottingham, Richard C. Jordan and Warren Roberts, in 
trust for the sole joint use, benefit and enjoyment of my 
wife, Virginia Lamar Bacon, and of my two daughters, 
Mary Louise Bacon Sparks and Augusta Lamar Bacon 
Curry, during the term of their natural lives, as follows: 
So long as they shall all live they shall be entitled to the 
equal enjoyment and use of the same including all revenues 
and profits in any way derived therefrom. When Mrs. Vir­
ginia Lamar Bacon shall die, the use, benefit and enjoyment 
of the entire property herein described and bounded shall 
belong to my two said daughters equally, including all 
revenues and profits in any way derived from the same, 
during the full term of their natural lives. Upon the death 
of either of my said daughters, her interest in said prop­
erty shall be enjoyed by her children and the survivors of 
them until the death of my last surviving daughter. Upon 
the death of my said wife and of each of my said daughters, 
[fol. 30] and of the last survivors of them, the trust created 
in this property by this said Ninth Item of this Will in 
the said tract of land thus defened, bounded and platted 
shall cease, and thereafter shall close all interest and right 
of enjoyment of any person or persons whomsoever in 
said property except as hereinafter specified and provided, 
to-wit: When my wife, Virginia Lamar Bacon and my two 
daughters, Mary Louise Bacon Sparks and Augusta Lamar 
Bacon Curry, shall all have departed this life, and immedi­



19

ately upon the death of the last survivor of them, it is my 
will 'that'all right, title and interest in and to said property 
TiereinBefore described and bounded, both legal and equi­
table  ̂' including ‘ all rerhainflers and reversions and every 
estate in the same of whatsoever kind, shall thereupon vest
in.arid 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 
■nfi±;^~\t®te~women  ̂white' girls,' wMte‘‘hoys an'd white chil­
dren'of'the City of Macon to be by them forever used and 
enjoyed” as’ a park and pleasure ground, subject to the 
restrictions, go\ eminent, management, rules and control of 
the Board of Managers hereinafter provided for: the said 
property under no circumstances, or by any authority what­

soever, to be sold or alienated or disposed of, or at any 
time for any reason devoted to any other purpose or use 
excepting so far as herein specifically authorized. For' the 
control, management, preservation and improvement of 
said property there shall be a Board of Managers consist­
ing of seven persons of w hom Tm FM slE iT four "shall be 
white women, and all seven of whom shall be white persons, 
[fol. 31] The Members of this Board shall first be selected 
and appointed by the Mayor and Council of the City of 
Macon, or by their successors in said trust; and all vacan­
cies in said Board shall be filled by appointments made, by 
the Mayor and Council of the City of Macon, or their suc­
cessors, upon nomination made by the said Board of Man­
agers find approved by the said Mayor and Council of,the 
City of Macon or their successors. If practicable, I desire 
tKat there shall be as a member of said Board of Managers 
at least one male or female descendant of my own blood, 
not only in the Board as first constituted, but at all times 
thereafter. The said Board of Managers shall at all times 
have complete and unrestricted control and management 
of the said property with power to make all needful regu­
lations for the preservation and improvement of the same, 
and rules for the use and enjoyment thereof, with power 
to exclude at any time any person or persons of either sex,



20

who may be deemed objectionable, or whose conduct or 
character may by said Board be adjudged or considered 
objectionable, or such as to render for any reason in the 
judgment of said Board their presence in said grounds in- 
consisting with or prejudicial to the proper and most suc­
cessful use and enjoyment of the same for the purposes 
herein contemplated. The Board of Managers shall have 
the power to admit to the use of the property the white 
men of the City of Macon, and white persons of other'cbm- 
munities, with the right reserved to at any time withhold 
or withdraw such privilege in their discretion. To enable 
the Board of Managers to have a fund for the payment of 
necessary expenses connected with the management, im­
provement and preservation of said property, including 
when possible drives and walks, casinos and parlors for 
[fol. 32] women, play grounds for girls and boys and pleas­
ure devices and conveniences and grounds for children, 
flower yards and other ornamental arrangements, I direct 
that said Board may use for purposes of income in any 
manner they may deem best that portion of the property 
that lies Easterly of the road known as Boulevard Bacons- 
field, beginning at the north Macon bridge and including 
the “ Pepper Place," also nil of said property lying on the 
river which is properly classed as low lands, or river bot­
tom: but in no event and under no circumstances shall any 
part of the property herein conveyed and bounded and 
platted be ever sold or otherwise alienated or practically 
disposed of by any person or authority whatsoever, and 
excepting the portions of the property which may be used 
for purposes of revenue as aforesaid all the remainder of 
said property shall forever and in perpetuity be held for 
the sole uses, benefits and enjoyments as herein directed 
and specified. If it should be held that said property is sub- * 
ject to taxation" when devoted to such uses as a park or 
■pleasure ground, I request that proper steps be taken to 
secure from the State of Georgia a perpetual release from i 
all liability to taxation.



21

I take occasion to say that in limiting the use and en- j 
joyment of this property perpetually to white people, I am k. **•%><£■> 
not influenced by any unkindness of feeling or want of con-*,v , TCjS, 
sideration for the Negroes, or colored people. On the con­
trary I have for them the kindest feeling, and for many o f '"  J 
them esteem and regard, while for some of them I have , 
sincere personal affection.

I am, however, without hesitation in the opinion that 
in their social relations the two races (white and negro)
[fol. 33] should be forever separate and that they should 
not have pleasure or recreation grounds to be used or en­
joyed, together and in common. I am moved to make this 
bequest of said property for the use, benefit and enjoyment 
of the white persons herein specified, by my gratitude to 
and love of the people of the City of Macon from whom 
through a long life time I have received so much of per­
sonal kindness and so much of public honor; and especially 
as a memorial to my ever lamented and only sons, Lamar 
Bacon who died on the 21st day of December 1884 and 
Augustus Octavius Bacon, Jr. who died on the 27th day of 
the same year. And I conjure all of my descendants to the 
remotest generation as they shall honor my memory and 
respect my wishes to see to it that this property is cared 
for, protected and preserved forever for the uses and pur­
poses herein indicated. I direct that said property during 
the lives of my said wife and my two said daughters shall 
continue to be known and designated as “ Baeonsfield” and 
that after their death, it shall be forever and perpetually 
knowm as “Baeonsfield,” and shall be so designated in all 
matters, documents and papers relating thereto.

While I make no restrictions, I request that the Managers 
will preserve on the property my present house residence, 
and the smaller house nearby which I have personally oc­
cupied for so many years and which I have called “ The Hut” 
the said houses to be used to the best advantage, and in such 
localities on the property as may be most desirable, for the 
comfort, convenience and pleasure of the white women, 
girls, boys and children herein designated: and I trust that 
the managers of said property may find it to the best inter-



22

[fol. 34] est of those who are to enjoy this property that 
there shall he perpetually preserved the present woods and 
trees upon the same. And I specifically direct that during 
the said trust estate in said property for the uses and bene­
fit of my wife Virginia Lamar Bacon and of my two daugh­
ters Mary Louise Bacon Sparks, and Augusta Lamar Bacon 
Curry, neither the said residence house nor the said smaller 
house known as “ The Hut” shall be removed or destroyed 
or materially altered by addition or otherwise, but that 
the same during the entire terms of said trust estate for life, 
be carefully preserved in their present condition; and fur­
ther that during the terms of said trust estates and during 
the lives of my said wife and my two said daughters, the 
woods and trees on said property be carefully preserved, 
and that no one of them be cut down or destroyed for any 
purpose whatsoever; and I further specifically provide 
and direct that the said trustees hereinbefore named,, and 
their successors shall not have'power or authority to sell or 
otherwise alienate or dispose of the tract of land thus de­
scribed, bounded and platted or any part thereof during the 
continuance of said trust or trusts or at any other time, 
under any circumstances and upon any account whatsoever, 
and all such power to make such sale,or alienation is hereby, 
expressly denied to'them, and to all others. "

Item 10th
To make still further provision for the preservation, man­

agement and improvement of the property set apart in the 
foregoing 9th Item of this Will as a park and pleasure 
grounds as aforesaid, I will and bequeath to the Mayor and 
Council of the City of Macon, and to their successors, ten 
[fol. 35] bonds of the Macon Bailway and Light Co., each 
of said ten bonds being for $1000.00 and in the aggregate 
being for $10,000.00 and bearing interest at the rate of 
five per cent per annum, and at present in the custody of 
The Biggs National Bank in Washington, D. C., the said 
bonds and all monies or things of value resulting and de­
rived therefrom to be held by the said Mayor and Council



23

of the City of Macon and their successors for the following 
trusts and uses, to-wit: So long as the property known 
and to be known perpetually as “Bacon sfield,” specified, 
bounded and described in the foregoing 9th Item of this 
Will, shall continue to be held in trust by the Trustees 
named in the said foregoing 9th Item and their successors 
for the use and benefit of my said wife and my two said 
daughters, or either of them, until the said property shall 
vest in the Mayor and Council of the City of Macon to be 
held in trust for the purposes specified and for the uses 
directed in the said 9th Item. The said Mayor and Council 
of the City of Macon shall as said Trustees collect the semi­
annual interest which shall be paid on said bonds, and as 
promptly as practicable invest the same in interest bearing 
bonds to be added to and included in said trust fund; and 
the interest received on the additional bonds thus purchased, 
and from all other bonds additional thereto resulting from 
and accruing to said fund, shall in like manner be reinvest­
ing in interest bearing bonds, so that all income from said 
fund or in any manner accruing to said fund shall as far 
as practicable be semiannually compounded and added to 
the principal of the original fund. When the said Trustees 
named in the said 9th Item and their successors shall cease 
[fol. 36] to hold said property in trust for my said wife 
and my said daughters, as provided in the said 9th Item, 
and when as therein provided the Mayor and Council of the 
City of Macon shall as Trustees be vested with said prop­
erty and the title to the same for the uses therein set forth, 
they shall as may be required for the preservation, main­
tenance and improvement of said park and pleasure ground, 
pay over to the Board of Managers hereinbefore provided 
for, the income subsequently received from said trust fund 
constituted of and resulting from the said bonds; and all 
income derived from said property, and from said bonds, 
and the proceeds thereof, when not required for the needs of 
said park and pleasure ground, be added to the said princi­
pal fund, to the end that from increased income it may be in 
greater and ever increasong degree beautiful and developed 
and equipped for the benefit and enjoyment of those for



24

whose pleasure and happiness it is designated. If for any 
reason it should be held that the Mayor and Council of the 
City of Macon have not the legal power under the charter 
of the City to hold said fund in trust for the purposes 
specified, then unless said power is obtained through ap­
propriate legislation, I direct that the powers herein ex­
pressed be conferred upon a trustee to be selected by the 
Mayor and Council of the City of Macon, with such safe­
guards and restrictions as may be prescribed by them for 
the perpetual safekeeping and management of the fund.
And I give a .similar direction if for any reason it should

"be held that the Mayor and Council of the City of Macon 
have not the legal power under their charter to hold in trust 
for the purposes specified the property designated for said 
[fol. 37] park and pleasure ground, unless said required 
power is conferred by appropriate legislation. Should the 
Mayor and Council of the City of Macon at any time con­
sent to do so, then I direct that they be authorized to re­
ceive the fund constituted of said bonds and all additions 
thereto and the proceeds thereof, and cover the same into 
the treasury of the City, in consideration of the perpetual 
obligation of the City to be evidenced by its bond or 
otherwise, to provide and pay over annually to the said 
Board of Managers an amount equal to five per centum 
interest upon the sum thus covered into the treasury, to 
be devoted by said Board to the uses hereinbefore specified. 
In making this bequest as expressed in this and the pre­
ceding item of my Will, I have been mindful to preserve the 
full use and enjoyment of the real estate to my wife and 
daughters during their natural lives, and also of the fact 
that the entire bequest in value represents a very much 
smaller proportion of my estate than would have been the 
share in it of my two sons had they lived. As there will 
be no one of my descendants who now bears my name 
either by right or birth, or through voluntary choice, an ad­
ditional reason is furnished why I should deem it proper 
that in devoting this property to the uses specified, I should 
at the same time link their memories with the pleasures and 
enjoyments of the women and children and girls and boys



25

of their own race in the community of which they once 
formed a happy part.

Item 11th
For many years I have had someone employed to care for 

the cemetery lot at Midway Church in Liberty County in 
[fol. 38] which my father, Rev. Augustus Octavius Bacon 
and my mother Mary Louise Bacon and my only brother, 
Samuel Jones Bacon, are buried, and also my uncle, Dr. 
Albert Summer Bacon, the small sum of $10.00 per year 
having been found sufficient for that purpose. I direct that 
the payment of said amount, or more if required, be made 
annually for said purpose, by the said trustees of my 
estate, and that the same be made a perpetual charge upon 
the property of my estate when distributed to my devisees 
and legatees; and I conjure my descendants to the remotest 
generation to so provide that the said cemetery lot shall 
always be properly preserved and cared for. I make a like 
bequest and request for the proper care of the burial lot of 
my wife’s family in Rose Hill Cemetery in Macon, and for 
the proper care of my own cemetery lot in Macon.

Item 12th
The provision herein made for my wife, Mrs. Virginia 

Lamar Bacon, is in all its parts, both as to realty and per­
sonalty through said Trustees, intended to be in lieu of 
dower and first year’s support. If she should refuse to 
accept the same and elect to take her dower, then it is my 
will that the remainder interest in the real estate set apart 
as her dower shall vest in my said Trustees for the trusts 
and estates and uses as hereinbefore provided should obtain 
following her death.

Item 13th
I direct that said Trustees shall be authorized to use 

a portion of the money realized from the sale of lots for 
residences or other purposes, in the improvement of other 
[fol. 39] portions of the property with the view of secur-



26

mg increased revenue therefrom for the enjoyment of my 
wife and daughters and their children; but I desire that this 
power shall be sparingly exercised and only in case where 
the prospects of such increased revenue is reasonable cer­
tain.

Item 14th
In case of the occurrence of a vacancy among the said 

Trustees herein named and appointed in the Sixth Item of 
this Will, I direct that it be filled by a suitable person 
selected by the remaining Trustees, such selection and the 
acceptance of the same to be evidenced in writing, and to 
be recorded upon the Minutes of the Superior Court of Bibb 
County upon petition by said remaining Trustees, and 
order of the Court granting authority to do so.

The said Trustees and their successors shall not be re­
quired to give any bond for the proper and faithful perform­
ance of their duties under said trust, or for any other pur­
pose whatsoever, nor shall they be required to make any 
returns of property or of money received and disbursed, 
or of any other actings and doings under said trust to any 
court or other authority, but shall only be required to keep 
accurate books of accounts of property and of receipts and 
disbursements which shall be open to the inspection of the 
beneficiaries under this Will. They shall also make to the 
Mayor and Council of the City of Macon annual reports, 
relative to the conditions and ..preservation of the prop­
erty herein designated as “Baconsfield” and embraced with- 
in 'fHrp'fOWsionl' of" IhFM nth Item of this Will, and par­
ticularly as to the preservation of the buildings and trees 
[fob 40] upon the same. I have confidence that my said 
Trustees will execute this trust as economically as prac­
ticable, and I recognize and desire that such one of this 
number as may be charged more immediately with the 
work shall, through commissions or sales or otherwise, 
receive a fair compensation for his time and labor ex­
pended thereon.



27

I am firmly convinced both from observation and per­
sonal experience that it is unwise for personal relatives 
to have business transactions and business relations with 
each other, and I specifically direct that, except as provided 
in the ninth Item of this Will in the case of the said Board 
of Managers, no blood relation of myself, and more par­
ticularly no one related to me by marriage, and most par­
ticularly no present or any future husband of said daugters 
or of either of my granddaughters, either during the lives 
of my said daughters or granddaughters, or at any time 
thereafter, shall ever be either actually, nominally or prac­
tically or practically an executor, administrator or trustee 
for the management or control of my7 estate, or of any part 
of the property thereof, or hold any position, authority 
or employment as a manager, representative, or agent in 
the control or management of the property or any part 
thereof; or of any business or interest connected with the 
same or related thereto.

Item 15th

Item 16th
I hereby nominate, constitute and appoint my said long 

tried friends, Alexander Lawton Miller, Custis Nottingham, 
Richard C. Jordan and Warren Roberts, all of said State 
and County, Executors of this my Last Will and Testament, 
[fol. 41] They shall not be required to make any inventory 
or appraisement of the property of my estate, nor to have 
the same made by others, excepting only such as shall be 
made voluntarily by them to be entered on their private 
records for the information of themselves and of the bene­
ficiaries under this Will. Nor shall the said Executors be 
required any bond, or to make any return of or concerning 
the property of my said estate, or the disposition or man­
agement of the same or of its revenues, or any other returns 
of any kind whatsoever to any court, officer or authority 
whatsoever.

In witness whereof I, the said Augustus Octavius Bacon, 
at Macon Georgia on this the twenty eighth day of March



28

in the year Nineteen hundred and eleven, to the foregoing 
thirty two pages written with my own hand, and containing 
my last Will and Testament, do hereby set my hand and 
affix my seal in the presence of the attesting witnesses, 
hereunto subscribing as such by my request.

/ s /  A u g u s t u s  O c tav iu s  B acon  (Seal)

Signed, Sealed, Declared and Published by Augustus 
Octavius Bacon as his last Will and Testament in the 
presence of the undersigned who, each of us, at his request, 
subscribed our names as witnesses thereto in the presence 
of said Testator and in the presence of each other—this the 
twenty eighth day of March, in the year Nineteen hundred, 

^  and eleven; the words ‘'including bothTKatTEeld by me in 
! rust, and ilial held in fee simple,” when they occur on the 
fourth page, and the word “ authority,” when it occurs on 
the tenth page, having been in each instance interlined be­
fore signing.
[fol. 42]

/ s /  J. M. H ancock  

/ s /  S idney  W . H atcher 

/ s /  W alter D efore

[fol. 43]
E x h ib it  “ B” to P e t it io n

C O D I C I L
City of Washington 
District of Columbia

I, Augustus Octavius Bacon, of the State of Georgia and 
County of Bibb and now temporarily sojourning at Wash­
ington in the District of Columbia, being of sound and dis­
posing mind and Memory, do 'hereby make, declare and 
publish this first codicil to my last Will and Testament 
heretofore made, published, and declared by me on the 28th 
day of March 1911.



29

I revoke so much of the second item of my said Will as 
directs that my body shall be interred in the cemetery lot 
recently purchased by me, and also that part in said item 
which directs that the bodies of my two deceased sons shall 
be disinterred and reinterred in said lot.

Item 2nd
I revoke so much of my said Will as nominates and ap­

points Warren Roberts as a trustee under the same, and 
also so much thereof as nominates and appoints the said 
Warren Roberts as Executor of my said Will, and in his 
stead I hereby nominate and appoint my tried and trusted 
friend Minter Wimberly of said County of Bibb, both as 
Trustee under my said Will and as executor thereof; hereby 
expressly conferring upon the said Minter Wimberly, both 
as said trustee and as said executor, all the powers, privi- 
[fol. 44] leges, rights, immunities and exemptions hereto­
fore conferred in said Will upon the said Warren Roberts, 
both as Trustee and as Executor as aforesaid.

Item 3rd
My beloved daughter, Augusta Lamar Bacon Curry, 

having died, it is my Will and I hereby direct that her 
children, Shirley Holcomb Curry, Marie Louise Lamar 
Curry and Manly Lamar Bacon Curry, shall in the disposi­
tion of my property, stand in the place of their Mother, and 
that the interest in my estate which she would have taken 
under my said Will shall, upon my death, enure to them 
and be held in trust for them and each of them in the same 
manner and to the same extent and subject to the same 
trusts, limitations, conditions and remainders as they 
would have taken under the provisions of my said Will had 
my daughter Augusta survived me and had they upon her 
subsequent death taken the same remainder interests pre­
scribed for them in my said Will, and my said trustees 
shall hold said interests for them with the same trusts, 
limitations and conditions as are prescribed for them in

Item 1st



30

my said W ill; but subject nevertheless to the following ad­
ditional provisions, limitations and remainders, to-wit: 
The interest as aforesaid of each of said children shall 
enure to and be enjoyed by each for and during the period 
of his or her natural life respectively; and if either of said 
children of my daughter Augusta shall die leaving no child 
or children in life, the interest of said child so dying shall 
[fol. 45] enure to and be injoyed by the surviving child or 
children of my daughter Augusta in the estates and with the 
■same remainders as are herein prescribed for the original 
interest so received by each of them respectively. In making 
provisions for the children of my daughter Augusta I am 
not unmindful of the fact that part of the property thus 
generally devised is held by me in trust for my wife and 
children; but as the property thus held by me in trust is 
less than one-half of the aggregate of the property held by 
me both in trust and in my own right, the division herein 
directed thus generally, can be made without violation the 
terms of said trust. To prevent possibility of misconstruc­
tion I hereby prescribe and declare that all interest of the 
said children of my said daughter Augusta in the property 
specified in Item 9 of my said Will and in the rents, issues 
and profits thereof, shall cease, end and determine upon the 
death of my wife Virginia Lamar Bacon and of my daughter 
Mary Louise Bacon Sparks.

Item 4th
I direct that the said 'Custis Nottingham shall with his 

family continue to occupy free of rent the house now oc­
cupied by him at Baconsfield until the full experation and 
execution of the trusts for the preservation and execution of 
which I have in my said Will and in this Codicil appointed 
the said Alexander Lawton Miller, Custis Nottingham, R. C. 
Jordan and Minter Wimberly as Trustees as aforesaid; this 
provision being made in consideration of the personal in­
terest in and care for said trust property and said cestui que 
trusts by said Nottingham.



31

Except as herein modified and changed by this first 
Codicil, I do again hereby make, declare and publish my 
said last Will and Testament heretofore made, declared 
and published by me on the 28th day of March, 1911.

In witness whereof I, the said Augustus Octavius Bacon, 
at Washington in the District of Columbia on this the sixth 
day of September (1913) Nineteen hundred and thirteen 
to the foregoing four and one half pages written with my 
own hand and containing this first Codicil to my said last 
Will and Testament, do hereunto set my hand and affix 
my seal in the presence of the attesting witnesses hereunto 
subscribing as such at my request.

/ s /  A u g u stu s  O ctav iu s  B acon  (Seal)

Signed, sealed, declared and published by Augustus 
Octavius Bacon as the first Codicil to his last Will and 
Testament in the presence of the undersigned, who each of 
us, at his request, have subscribed our names as wit­
nesses thereto in the presence of the said Testator and in 
the presence of each other, this the Sixth day of September 
(1913) Nineteen hundred and thirteen.”

....  / s /  J n o . T . B o ife u ill e t

/ s /  J am e s  L . F ort 

/ s /  E ar l  B. W il l ia m s

[fol. 46] Item 5th

[File endorsement omitted]



32

[fol. 47]
I n  t h e  S uperior , C o u r t , B ibb  C o u n t y , G eorgia 

Bill in Equity 
No. 25864

[Title omitted]

A n s w e r  of D e f e n d a n t , C it y  of M acon—
Filed May 20, 1963

Comes now the City of Macon, one of the defendants 
named in this action and files this answer to plaintiffs 
petition, and shows:

1.

This defendant admits paragraphs one and two of plain­
tiff’s petition.

2.

This defendant denies paragraph three of the petition, 
as pleaded, but admits that the defendant is a municipality 
duly created by the Legislature of the State of Georgia and 
that this defendant holds the legal and equitable title to 
the property in question, subject to the provisions of Item 
IX  of the last will and testament of Augustus Octavius 
Bacon.

3.
On information and belief, this defendant admits para­

graph four of the petition.

4.
This defendant admits paragraphs five, six and seven of 

the petition.
5.

This defendant denies paragraph eight of the petition as 
pleaded. The said will attached to the petition speaks for



33

itself and is subject to interpretation and constrnction by 
this court.
[fol. 48] 6.

This defendant can neither admit nor deny paragraph 
nine of the petition, but, on information and belief, admits 
that subject property has been used exclusively by white 
persons.

7.
This defendant denies paragraph ten as pleaded. How­

ever, this defendant admits that large numbers of Negro 
citizens have gone upon the subject property and used the 
same for various recreational activities during the past 
few weeks, and the City of Macon further admits that the 
use of the subject property by said members of the Negro 
race is not in conformity with the expressed intentions of 
said testator as contained in Item IX  of the aforesaid will. 
Further, the City of Macon alleges that it has no authority 
to enforce racially discriminatory restrictions with regard 
to property held in fee simple or as trustee for a private or 
public trust and, as a matter of law, is prohibited from en­
forcing such racially discriminatory restrictions.

8.
This defendant admits the first sentence of paragraph 

eleven, but denies the remaining portion of said paragraph 
as pleaded.

9.
Defendant denies paragraph twelve of plaintiffs’ peti­

tion.
10.

This defendant neither admits nor denies paragraph thir­
teen of plaintiffs’ petition since no answer is required.
[fol. 49] For further plea and answer this defendant 
shows:



34

The City of Macon cannot legally enforce racial segre­
gation of the property known as Baconsfield and, there­
fore, is unable to comply with the specific intention of 
the said testator with regard to maintaining the property 
for the exclusive use, benefit and enjoyment of the white 
women, white girls, white boys and white children of the 
City of Macon; neither can the City convey said property 
to private individuals, either for or without consideration, 
in order to carry out the said specific intention of the said 
testator.

W H E R E F O R E :
This defendant prays that this honorable court construe 

the last will and testament of the late Augustus Octavius 
Bacon and enter a decree setting forth the duties and obliga­
tions of the City of Macon in the premises and give such 
directions as the court deems proper, just and equitable.

Buckner F. Melton, 305 Persons Building, Macon, 
Georgia, Attorney for Defendant, City of Macon.

Duly sworn to by Edgar II. Wilson, jurat omitted in print­
ing.
[fol. 50] Certificate of service (omitted in printing).

[File endorsement omitted]

11.

[fol. 51]
I n  t h e  S u per io r  C o u r t , B ibb  C o u n t y , G eorgia 

Bill in Equity 
No. 25864 

[Title omitted]
A n s w e r  oe D e f e n d a n ts  G u y t o n  G . A b n e y , J. D . C r u m p , 

T . I. D e n m a r k , an d  D r . W . G. L ee , as  S uccessor  T r u s ­
te es  U n d er  t h e  L ast W ill , an d  T e s t a m e n t  of A u g u stu s  
O ctav iu s  B a c o n , D eceased—Filed May 27, 1963

Come now Guyton G. Abney, J. D. Crump, T. I. Denmark 
and Dr. W. G. Lee, as successor trustees under the Last 
Will and Testament of Augustus Octavius Bacon, deceased,



35

named among others as defendants in the above cap­
tioned matter, and answering said petition, respectfully 
show:

1 .

These respondents admit the allegations of Paragraphs 1, 
2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13 of said petition.

2.
Further answering said petition, these respondents, with­

out waiving any of the rights, title or interest vested in 
them under said Last Will and Testament, join in each and 
every prayer of said petition and, without limiting the gen­
erality of the foregoing, pray that the City of Macon be 
removed as trustee of the charitable trust created in said 
'L'ahfWiir and Testament and Codicil of Augustus Octavius 
Bacon, deceased.

Jones, Sparks, Benton & Cork, Attorneys for respon­
dents Guyton G. Abney, J. D. Crump, T. I. Den- 
[fol. 52] mark and Dr. W. G. Lee, As successor 
Trustees under the Last Will and Testament of 
Augustus Octavius Bacon, deceased.

Duly sworn to by Guyton G. Abney, jurat omitted in print­
ing.
[fol. 53] Certificate of service (omitted in printing).

[File endorsement omitted]

[fol. 54]
I n  t h e  S u per io r  C o u rt , B ibb  C o u n t y , G eorgia 

Bill in Equity 
No. 25864 

[Title omitted]
Motion for Summary Judgment—Filed May 27,1963

Come now C. E. Newton, Frank M. Willingham, Mrs. 
Francis K. Hall, Mrs. Kenneth W. Dunwody, Mr. George 
P. Ranking, Jr., Mrs. Frederick W. Williams and Mrs. T. J.



36

Stewart, petitioners in the foregoing matter and make this 
motion for a summary judgment, and respectfully show:

1.
There is no genuine issue as to any material fact and 

your petitioners are entitled to a judgment as a matter of 
law.

Wherefore, your petitioners pray that this their motion 
for summary judgment be granted and that they have such 
other and further relief as the Court may deem fit and 
proper.

Jones, Sparks, Benton & Cork, Attorneys for peti­
tioners.

Certificate of service (omitted in printing).
[fol. 55] [File endorsement omitted]

[fol. 56]
I n  t h e  S u per io r  C o u r t , B ibb  C o u n t y , G eorgia 

Bill in Equity 
No. 25864

[Title omitted]

M o tion  oe R ev . E . S . E v a n s , e t  a l . to I n t e r v e n e—
Filed May 29,1963

Come now, Rev. E. S. Evans, Louis H. Wynne, Rev. 
J. L. Key, Rev. Booker W. Chambers, William Randall, 
and Rev. Van J. Malone, and move this Honorable Court 
for leave to file a petition of intervention in the above- 
styled action, and for grounds show as follows:

1.
That the property which is the subject matter of the cap­

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



37

The movants, being Negro residents of the City of Macon, 
and all other Negroes similarly situated, are subject to 
being irreparably harmed and damaged, in that, they are 
subject to being deprived of the use of said park if the 
prayers of the plaintiffs are sustained and a judgment is 
rendered in their favor.

2.

3.

That the interests and welfare of the movants will be 
directly affected by the outcome of said suit, but there 
are no parties to the subject action who are or can ade­
quately protect the legal rights and interests of the mov­
ants or the class which they represent, in that, some of the 
interests of the defendants and the movants are not only 
different but are, to some extent, adverse.

[fol. 57] 4.
Wherefore, movants pray that:
(a) This motion be allowed;
(b) That movants be granted leave to file their inter- 

venors’ petition in the above-captioned action;
(c) That all of the proceedings in the instant case be 

held in abeyance pending the filing of the intervenors’ 
pleadings;

(d) That movants be granted thirty (30) days in which 
to file their pleadings in the captioned action.

This 26th day of May, 1963.
Donald L. Hollowell, Counsel for Movants.

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



38

[fol. 58]
O rder— May 28,1963

Motion read and considered, let the same be filed.
It Is Hereby Ordered that the movants be, and they are 

granted leave to file their pleadings of intervention in the 
subject action within (20) Twenty days from the date of 
this order. All other proceedings in this action are hereby 
continued pending the filing of said pleadings within the 
time specified.

This 28 day of May, 1963.
O. L. Long, Judge, Bibb Superior Court.

[File endorsement omitted]

[fol. 59]
I n  t h e  S u p e r io r  C o u rt , B ibb  C o u n t y , G eorgia 

Bill in Equity 
No. 25864

[Title omitted]

I n t e r v e n o r s ’ P e t it io n '—Filed June 18,1963
Comes now, Rev. E. S. Evans, Louis H. Wynne, Rev. 

J. L. Key, Rev. Booker W. Chambers, William Randall, 
and Rev. Van J. Malone, who file this their intervention 
to the claim for relief of the plaintiffs, in their individual 
capacities and as they constitute the Board of Managers 
of Baconsfield, and show as follows:

1.
That the intervenors are Rev. E. S. Evans, Louis H. 

Wynne, Rev. J. L. Key, Rev. Booker W. Chambers, William 
Randall, and Rev. Van J. Malone, and are citizens of the 
United States of America and of the State of Georgia. In­
tervenors are domiciliaries and residents of Bibb County, 
Georgia, and of the City of Macon, Georgia. Each of the



39

intervenors is a member of the Negro race and bring this 
petition of intervention on behalf of themselves and other 
Negroes similarly situated as a class.

2,
That the present parties defendant, as named and desig­

nated in the petition, cannot adequately represent and as­
sert the interest of the intervenors. For the intervenors 
seek to have Baconsfield Park operated upon an integrated 
basis and the present parties defendant have an interest in 
continuing to operate the said park upon a desegregated 
[fol. 60] basis according to Item 9 of the Will of Augustus 
Octavius Bacon which is attached to the plaintiffs’ petition, 
marked “ Exhibit 2”, and thereby incorporated herein by 
reference.

3.
That any judgment, final order, or decree entered in the 

captioned action would be binding upon the intervenors 
and thus prejudicial to them.

4.
That by the Will of Augustus Octavius Bacon, the real 

property described in Item 9 became vested in the City of 
Macon in fee simple aljM'lute upon the death of the testator 
■afidr^erfain of his devisees and legatees under his will and 
codicil.

5.
That the Board of Managers charged by the Will with 

the obligation to control, maintain, and regulate Bacons­
field Park is an agency of the City of Macon. Said Board 
of Managers having become such by the City of Macon hav­
ing appointed and having designated its members from the 
date of creation of the park, until the present time, and by 
the City of Macon having adopted the Acts and Resolutions 
of said Board and by having acquiesced in the same.



40

That the restriction and limitation reserving the use and 
enjoyment of the devise, legacy, and bequest of Bacons- 
field Park to the City of Macon to “ White women, white 
girls, white boys and white children of the City of Macon,” 
is violative of the public policy of the United States of 
America, treaties and other international obligations of the 
[fol. 61] United States and violative of the Constitution 
and laws of the State of Georgia. The public policy of the 
United States and of the State of Georgia being that no 
citizen is to be deprived of the use, benefit, and enjoyment 
of any publicly owned or supported facility solely because 
of his race, national origin, creed, or religion.

7.
That this Honorable Court, as an agency of the State 

of Georgia, cannot consistently with the equal protection 
clauses of the Fourteenth Amendment of the United States 
Constitution and flic equivalent provisions of the Constitu­
tion of the State of Georgia, enter an order, as a court of 
equity, appointing three (3) freeholders, residents of the 
City of Macon, to serve as successor trustees, who in such 
capacity as trustees could operate and maintain Bacons- 
field Park upon a segregated basis; that is, the use and en­
joyment of the same being limited and restricted to “ white 
women, white girls, white boys and white children of the 
City of Macon.” Such an order appointing private citizens 
as trustees for the manifest and express purpose of operat­
ing, managing, and regulating public property which passed 
to the City of Macon under a charitable trust created by 
will in a racially discriminatory manner, is violative of the 
Fourteenth Amendment to the United States Constitution 
and of the equivalent provisions of the Constitution of the 
State of Georgia.

6.



41

[fol. 62] For a Second Answer and Defense

8.
That at the time the said will was probated and the real 

property known as Baconsfield Park passed to the City 
of Macon, the law of the land and of the State of Georgia 
as expressed and stated in the case of Plessy v. Ferguson, 
163 U. S. 537, and decisions of the courts of this state and 
the laws of the State of Georgia consistent therewith per­
mitted a racially restrictive condition and limitation im­
posed upon a public charitable trust to be enforced by the 
courts of the state wherein the trust was located. Since that 
time, the law of the land as reflected in the cases of Brown v. 
Board of Education, 347 U. S. 483, and the Memphis Parle 
Case (decided in the United States Supreme Court May 
27, 1963), and in decisions and judgments of the courts 
of this State and the laws consistent therewith, has changed. 
That is, discrimination based solely upon race is no longer 
a permissible object of state action whether such action is 
that of an administrative agency, the state executive officers 
and employees, the state legislature, or of the state courts.

9.
That, although the charitable legacy, device, and bequest 

at the time of its creation was capable of being executed 
in the exact manner provided for in the will of the testator, 
by operation of law it is no longer capable of further execu­
tion in the exact manner provided for by the testator, 
Augustus Octavius Bacon. That this Court (sitting in 
equity) effectuate the general charitable purpose of the 
testator to establish and endow a public park within the 
[fol. 63] City of Macon by refusing to appoint private per­
sons as trustees of the said Baconsfield Park.

10.

That the plaintiffs as they appear by name and designa­
tion in the petition, are not proper parties to maintain a 
petition for the removal and appointment of trustees of a



42

public charitable trust as it does not appear that they have 
the requisite authority as required by law nor the requisite 
capacity and standing as required by law.

11.
That the plaintiffs, the named individuals and the Board 

of Managers do not come into this Court with clean hands. 
The plaintiffs seek judicial sanction of their alleged and 
avowed intent, design, and purpose to have private per­
sons appointed in their place and stead as trustees, man­
agers of Baconsfield Park, so that the said Baeonsfield Park 
may be operated in violation and degradation of the con­
stitutional rights of the intervenors.

Wherefore, the intervenors respectfully pray that they 
may have judgment against the petitioners with costs upon 
the petitioners.

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

Howard Moore, Jr., Of Counsel.
[fol. 64] June 14,1963.

Certificates of service (omitted in printing).
[Pile endorsement omitted]

[fol. 65]
I n  t h e  S u per io r  C o u r t , B ibb  C o u n t y , G eorgia 

No. 25864 
Bill in Equity

[Title omitted]

A m e n d m e n t  to P l a in t if f s ’ P e t it io n —
Filed January 8,1964

Come now the plaintiffs in the above styled case and by 
leave of the Court first had and obtained, amend their peti­
tion as follows:



43

By adding thereto a paragraph “ 14” to read as follows: 
“ since the time when the original petition was filed, an in­
tervention has been filed on behalf of certain negro resi­
dents of Macon, Bibb County, Georgia, to-wit: Rev. E. S. 
Evans, Louis H. Wynne, Rev. J. L. Key, Rev. Booker W. 
Chambers, William Randall, and Rev. Van J. Malone. That 
intervention was filed on behalf of the above named parties 
and on behalf of ‘other Negroes similarly situated’ as a 
class” .

2.
By adding thereto paragraph “ 15” to read as follows; 

“ Plaintiffs show that by the phrase ‘other Negroes similarly 
situated’ the intervenors encompass all Negro residents of 
Macon, Bibb County, Georgia. Plaintiffs show that each 
and every one of the intervenors named in the above para­
graph plus each and every member of the Negro race resi­
dent in Macon, BibffTTbunty, Georgia, as the class repre­
sented should be.permanently ..enjoined from entering the
grounds of Baconsfield, using any of the facilities located 
thereon or in any other way interfering with plaintiffs in 
[fob 66] their efforts to carry out the express testamentary 
wishes of A. 0. Bacon relating to' the^classerdf persons to 
be bhflefited by his grant of Baconsfield.”

3.
By adding thereto a paragraph “ 16” to read as follows: 

“Plaintiffs show that a trust was established under the 
Will of A. 0. Bacon for his heirs. The trust has been 
executed as regards four of his seven heirs now living and 
a distribution of property made to them. They are A. 0. B. 
Sparks, Willis B. Sparks, Jr., Virginia Lamar Sparks and 
M. Garten Sparks. The interests of the remaining three 
heirs, i.e. Louise Curry Williams, Shirley Curry Cheatham, 
and Manley Lamar Curry, are still held under an unex­
ecuted trust by four trustees holding under the authority of 
the will, to-wit: Guyton Abney, J. D. Crump, T. I. Den-

1.



44

mark and Dr. W. G. Lee. Plaintiff shows that these seven 
persons have a definite interest in the disposition of this 
litigation, since if the trust purpose expressed in the Will of 
A. 0. Bacon with respect to the designation of persons who 
may use Baeonsfield, fails, the property comprising Bacons- 
field together with property, the rentals of which provide 
the upkeep of Baeonsfield, will revert and lapse into the 
estate of A. 0. Bacon thence to be distributed to the above 
named heirs.”

4.
By adding thereto a paragraph “ 17” to read as follows: 

“ Plaintiffs show that there are no parties to this case 
with an interest identical to that of the Sparks heirs of 
A. 0. Bacon such as to afford adequate representation to 
[fol. 67] the interests of the said heirs.”

5.
By adding thereto a prayer to read as follows: “ Plain­

tiffs pray that A. 0. B. Sparks, Willis B. Sparks, Jr., 
Virginia Lamar Sparks, and M. Garten Sparks be allowed to 
intervene and that Guyton Abney, J. D. Crump, T. I. Den­
mark and Dr. W. G. Lee be allowed as Trustees to assert 
the interest of Louise Curry Williams, Shirley Curry 
Cheatham and Manley Lamar Curry.”

6.

By adding thereto a prayer to read as follows: “ Plain­
tiffs pray that each and every one of the intervenors named 
in paragraph one, plus each and every member of the 
Negro race resident in Macon, Bibb County, Georgia, as 
the class represented be permanently enjoined f rom enter­
ing the grounds of Btfconsfielc!, using any of the facilities 
located thereon, or in any other way interfering with plain­
tiffs in their efforts to carry out the express testamentary 
wishes of A. 0. Bacon relating to the classes of persons 
to be benefited by his grant of Baeonsfield.”



45

Wherefore, plaintiffs pray that their amendment be al­
lowed.

Jones, Sparks, Benton & Cork, Attorneys for Plain­
tiffs.

Order—January 8,1964
The within amendment being presented to me, it is 

allowed and ordered filed, subject to demurrer.
This the 8 day of January, 1964.

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

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

[fol. 69]
I n  t h e  S u per io r  C o u r t , B ibb C o u n t y , G eorgia 

No. 25864 
Bill in Equity

[Title omitted]

P e t it io n  for  I n t e r v e n t io n — Filed January 8 , 1964
The petition of A. 0. B. Sparks, Willis B. Sparks, Jr., 

Virginia Lamar Sparks, and M. Garten Sparks, respect­
fully shows to the court the following facts:

1.
Petitioners herein are grandchildren of the heirs of A. 0. 

Bacon, deceased, being children of his deceased daughter, 
Mary Louise Bacon Sparks. The widow and only other 
child of the said A. 0. Bacon who survived him are now 
deceased.

2.
Petitioners have an interest in the subject matter of the 

above styled case, since if the trust purpose expressed in



46

the Will of A. 0. Bacon, including the restriction of the 
use of Baeonsfield Park to white persons, is not carried 
out, the property will lapse into the Estate of A. 0. Bacon, 
ultimately to be distributed to his heirs.

Petitioners show that there is no party presently before 
the Court to represent their said interest.

4.
Petitioners present the following requests for relief pray­

ing that:
(a) They be allowed to intervene and be heard.
(b) That all of the prayers of plaintiffs, the Board 
of Managers of Baeonsfield, be granted.
[fol. 70] (c) That each and all of the Negro interveners 
and all of those whom they represent be permanently 
enjoined from entering Baeonsfield Park or from in 
any way interfering with the Board’s management of 
the Park for the use and benefit of white persons only.

Further, petitioners emphasize beyond all chance for 
doubt that their desire is that the above enumerated prayers 
be granted, that the City of Macon be replaced as Trustee 
and that such other and further relief be granted by this 
Court as will insure that Baeonsfield Park will continue 
to be operated in strict accordance with the Will of A. O. 
Bacon. It is^tETmost fervent hope of intervenors that 
Baeonsfield will remain as a memorial to the memory of 
the infant sons of A. 0. Bacon and as a park for SS’^finefiiX 
of the white boys, white girls and white women of Macon, 
Georgia, under the direction of the plaintiff Board of Man- 
agers.

3,

5.



47

Petitioners further pray that if this Court does not enter 
an order in this case effectuating the continued adminis­
tration of Baeonsfield in accordance with the 'W ill of A. 0. 
Bacon for the sole benefit of white persons, That in that 
event,—And Only In That Event—this honorable Court de­
cree that the trust purpose having failed, the property 
included in Baeonsfield and that property, the rental of 
which had supplied the income for the upkeep of Bacons- 
field, both be held to revert and lapse into the estate by 
operation of law.

Jones, Sparks, Benton & Cork, Attorneys for Peti­
tioners.

6.

[fol. 71]
O rder— January 8,1964

The within petition for intervention being presented to 
me, it is allowed and ordered filed, subject to demurrer.

This the 8 day of January, 1964.
0. L. Long, J. S. C. M. C.

Certificate and acknowledgment of service (omitted in 
printing).

[File endorsement omitted]

[fol. 72]
I n  t h e  S u per io r  C o u r t , B ibb  C o u n t y , G eorgia 

No. 25864 
Bill in Equity 

[Title omitted]
A m e n d m e n t  to A n s w e r  an d  Cross B il l  

Filed January 8,1964
Come now Guyton Abney, J. I). Crump, T. I. Denmark, 

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



48

by leave of the Court first had and obtained amend their 
answer as follows:

1.
By adding a paragraph 3 to read as follows: “ These 

defendants are Trustees under the Will of A. 0. Bacon 
for the benefit of certain of his heirs, to-wit: Louise Curry 
Williams, Shirley Curry Cheatham and Manley Lamar 
Curry. A similar trust has become executed with respect to 
certain other heirs, to-wit: A. 0. B. Sparks, W. B. Sparks, 
Jr., Virginia Lamar Sparks, and M. Garten Sparks, but the 
trust with respect to the first named group of heirs, which 
shall hereinafter be referred to as the ‘Curry Heirs’, has 
not become executed.”

2.

By adding a paragraph 4 to read as follows: “ defen­
dants show that the Curry Heirs have an interest in the 
subject matter of the above styled case, since if the trust 
purpose expressed in the Will of A. 0. Bacon, including the 
restriction of the use of Baconsfield to white persons, is 
not carried out, the property will lapse into the Estate of 
A. 0. Bacon, ultimately to be distributed to his heirs.”

[fol. 73] 3.
By adding by way of a cross bill the following prayer: 

“ Defendants as such Trustees and on behalf of the said 
Curry heirs present the following requests for relief pray­
ing:

(a) That they be allowed to assert the interest of the 
Curry heirs.
(b) That all of the prayers of plaintiffs, the Board 
of Managers of Baconsfield, be granted.
(c) That each and all of the Negro intervenors and all 
of those whom they represent be permanently enjoined 
from entering Baconsfield or from in any way inter­



49

fering with the Board’s management of Baconsfield 
for the use and benefit of white persons only.”

4.
By adding a paragraph to read as follows: “ Further, 

defendants as such Trustees and on behalf of the Curry heirs 
emphasize beyond all chance for doubt that the desire of the 
Curry heirs is that the above enumerated prayers be 
granted, that the City of Macon be replaced as Trustee and 
that such other and further relief be granted by this Court 
as will insure that Baconsfield will continue to be operated 
in strict accordance with the Will of A. 0. Bacon. It is the 
most fervent hope of the Curry heirs that Baconsfield will 
remain as a memorial to the memory of the infant sons of 
A. 0. Bacon and as a park for the benefit of the white boys, 
white girls and white women of Macon, Georgia, under the 
direction of the plaintiff Board of Managers.”

[fol. 74] 5.
By adding by way of cross bill the following prayer: “ De­

fendants as such Trustees and on behalf of the Curry heirs 
further pray that if this Court does not enter an order m 
this case effectuating the continued administration of 
Baconsfield in accordance with the Will of A. 0. Bacon for 
the sole benefit of white persons, that in that event,—And 
Only In That Event—this honorable Court decree that the 
trust purpose having failed, the property included in 
Baconsfield and that property, the rental of which had 
supplied the income for the upkeep of Baconsfield, both be 
held to revert and lapse into the estate by operation of 
law.”

Jones, Sparks, Benton & Cork, Attorneys for the 
aforementioned Trustees.

O rder— January 8, 1964
The within Amendment to Answer and Cross Bill being 

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



50

This the 8 day of January, 1964.
0. L. Long, J.S.C.M.C.

[fol. 75] Certificate and acknowledgment of service 
(omitted in printing).

[File endorsement omitted]

[fol. 76]
I n  t h e  S u per io r  C o u rt , B ibb  C o u n t y , G eorgia 

No. 25864 
Bill in Equity

[Title omitted]

A m e n d m e n t  to A n s w e r  of C it y  of M acon—
Filed February 5,1964

Comes now the City of Macon, defendant in the above 
stated case, and by leave of the Court first had and ob­
tained amends its answer heretofore filed and respect­
fully shows:

1.
Pursuant to a resolution adopted by the Mayor and Coun­

cil of the City of Macon at its regular meeting on Febru­
ary 4, 1964, a copy of which is hereto attached marked 
Exhibit A, the City of Macon acting through its Mayor and 
Clerk has resigned as Trustee under Items 9th and 10th of 
the Will of the late Senator Augustus Octavius Bacon, a 
copy of said resignation being hereto attached marked Ex­
hibit B.

2.

Upon the acceptance of said resignation by this Court 
and the appointment of new Trustees to serve in lieu of the 
City of Macon, if this Court sees fit to appoint such new 
Trustees, the City of Macon will have no further duties to 
perform as such Trustee and will no longer be a necessary 
or proper party in said case.



51

Wherefore, defendant prays:
(1) That this amendment be allowed and ordered filed 

as part of the record in said case;
[fol. 77] (2) That the resignation of the City of Macon as
Trustee under the Will of Senator Augustus Octavius 
Bacon be accepted, and that the Court take such further 
action in the premises as to the Court may seem meet 
and proper;

(3) That defendant be hence discharged.
Trammell F. Shi, City Attorney.

O rder

The foregoing amendment allowed and ordered filed. 

This February 5, 1964.
0. L. Long, J.S.C.M.C.

Certificates of service (omitted in printing).

[fol. 79]
E x h ib it  “ A ”  to  A m e n d m e n t  to A n s w e r

R e so lu tio n  oe t h e  M ay or  an d  C o u n c il  
of t h e  C it y  of M acon  A dopted  F eb ru ar y  4, 1964

W h e r e a s , in Civil Action No. 25864, pending in the Su­
perior Court of Bibb County, Georgia, captioned Charles E. 
Newton, et al. vs. City of Macon, et al. the defendant City 
of Macon has heretofore filed its answer admitting that it 
has not for some time prior to filing said answer carried 
out as Trustee all of the provisions of the trust established 
in Items 9th and 10th of the Last Will and Testament of 
the Late Senator Augustus Octavius Bacon with reference 
to the property known as Baconsfield, said Items 9th and 
10th reading as follows:

“ Item 9th
“ I direct that there by said Trustees laid off and ac­

curately defined and permanently marked by enduring



52

monuments, the following described part of my farm 
which is situated in part within and part without the 
corporate limits of the City of Macon, and known as 
‘Baconsfield,’ the same to be set a part and dedicated 
to the purposes, uses and enjoyments as hereinafter 
more fully set forth and detailed. The said part of the 
property thus set apart is bounded as follows: There 
is on the Southeastern part of my said farm a four 
acre rectangular tract which formerly belonged to 
James Pepper, and which is commonly known as the 
‘Pepper Place’ the same having been purchased and 
added to my farm, for this description, beginning at 
[fol. 80] the Southeastern corner of said rectangular 
tract, the boundary line of the property runs in a 
Northerly direction along the Eastern boundary line 
of said Pepper Place and thereafter in a direct prolon­
gation of the same to a point nine hundred and sixty- 
three feet and five-tenths from the said starting point, 
thence in a slightly northwestern direction sixty-three 
feet and five-tenths, thence in a northerly direction 
three hundred and thirty-two feet across boulevard 
Baconfield to a point on the Western side of said Boule­
vard, thence three hundred and sixteen feet along the 
western border of said Boulevard to a point on the 
same immediately opposite the junction of said Boule­
vard and Gray Street, thence, in a direction a little 
West of North, twenty-four hundred and eighty feet 
to an elm tree, thence at right angles sixteen hundred 
and sixty-two feet to the bank of the Ocmulgee Biver, 
thence in a Southeasterly direction along the bank of 
said river thirty-three hundred and ninety-seven feet, 
thence in a direct line to the Southwest corner of the 
said Pepper lot, thence four hundred and thirty-seven 
feet along the Southern boundary line of said Pepper 
lot to the original starting point; the said metes and 
bounds of the said tract of land being correctly platted 
and defined on a map of the same hereto attached, 
made by H. D. Cutter and upon which for the purpose 
of identification, I have endorsed my original signa-



53

[fol. 81] ture. The larger part of the property thus 
described and bounded is a portion of a trust estate 
originating with me and created solely by me for the 
benefit of my wife and children during my life and for 
their benefit and use after my death in such estates 
and with such remainders as should be specified and 
directed by me in my last Will and Testament. For 
the purpose of carrying out fully the purpose and in­
tent of the trust thus created, I hereby give, bequeath 
and devise the said property consisting of the tract of 
land hereinbefore described and bounded and platted 
on said map unto the said Trustees, viz. Alexander 
Lawton Miller, Custis Nottingham, Richard C. Jordan 
and Warren Roberts, in trust for the sole joint use, 
benefit and enjoyment of my wife, Virginia Lamar 
Bacon, and of my two daughters, Mary Louise Bacon 
Sparks and Augusta Lamar Bacon Curry, during the 
term of their natural lives, as follows: So long as 
they shall all live they shall be entitled to the equal 
enjoyment and use of the same including all revenues 
and profits in any way derived therefrom. When Mrs. 
Virginia Lamar Bacon shall die, the use, benefit and 
enjoyment of the entire property herein described and 
bounded shall belong to my two said daughters equally, 
including all revenues and profits in any way derived 
from the same, during the full term of their natural 
lives. Upon the death of either of my said daughters, 
[fol. 82] her interest in said property shall be enjoyed 
by her children and the survivors of them until the 
death of my last surviving daughter. Upon the death 
of my said wife and of each of my said daughters, and 
of the last survivors of them, the trust created in this 
property by this said Ninth Item of this Will in the 
said tract of land thus defined, bounded and platted 
shall erase, and thereafter shall close all interest and 
right of enjoyment of any person or persons whom­
soever in said property except as hereinafter specified 
and provided, to-wit: When my wife, Virginia Lamar 
Bacon and my two daughters, Mary Louise Bacon



54

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 here­
inbefore described and bounded, both legal and equi­
table, including all remainders and reversions and every 
estate in the same of whatsoever kind, shall thereupon 
vest in and belong to the Mayor and Council of the City 
of Macon, and to theirjsuccessors forever, in trust for 
the sole, perpetual and unending use, benefit and en­
joyment of the white women, white girls, white boys 
and white children of the City of Macon to be by 
them forever used and enjoyed as a park and pleasure 
ground, subject to the restrictions, government, man­
agement, rules and control of the Board of Managers 
[fol. 83] hereinafter provided for; the said property 
under no circumstances, or by any authority whatso­
ever, to be sold or alienated or disposed of, or at any 
time for any reason devoted to any other purpose or 
use excepting so far as herein specifically authorized, 
for the control, management, preservation and improve­
ment of said property there shall be a Board of Man­
agers consisting of seven persons of whom not less 
than four shall be white women, and all seven of whom 
shall be white persons. The Members of this Board 
shall first be selected and appointed by the Mayor and 
Council of the City of Macon, or by their successors 
m said trust; and all vacancies in said Board shall be 
filled by appointments made by the Mayor and Council 
of the City of Macon, or their successors, upon nomina­
tion made by the said Board of Managers and approved 
by the said Mayor and Council of the City of Macon or 
their successors. If practicable, I  desire that there shall 
be as a member of said Board of Managers at least one 
male or female descendant of my own blood, not only 
in the Board as at first constituted, but at all times 
thereafter. The said Board of Managers shall at all 
times have complete and unrestricted control and man­
agement of the said property, with power to make all



55

needful regulations for the preservation and improve­
ment of the same, and rules for the use and enjoyment 
thereof, with power to exclude at any time any person 
[fol. 84] or persons of either sex, who may be deemed 
objectionable, or whose conduct or character may by 
said Board be adjudged or considered objectionable, 
or such as to render for any reason in the judgment 
of said Board their presence in said grounds inconsist- 
ing with or prejudicial to the proper and most success­
ful use and enjoyment of the same for the purposes 
herein contemplated. The Board of Managers shall 
have the poser to admit to the use of the property the 
white men of the City of Macon, and white persons of 
other communities, with the right reserved to at any 
time withhold or withdraw such privilege in their dis­
cretion. To enable the Board of Managers to have a 
fund for the payment of necessary expenses connected 
with the management, improvement and preservation 
of said property, including when possible drives and 
walks, casinos and parlors for women, play grounds for 
girls and boys and pleasure devices and conveniences 
and grounds for children, flower yards and other orna­
mental arrangements, I direct that said Board may use 
for purposes of income in any manner they may deem 
best that portion of the property that lies Easterly of 
the road known as Boulevard Baconsfield, beginning at 
the north Macon bridge and including the ‘Pepper 
Place,’ also all of said property lying on the river which 
is property classed as low lands, or river bottom; but 
in no event and under no circumstances shall any 
part of the property herein conveyed and bounded and 
[fol. 85] platted be ever sold or otherwise alienated 
or practically disposed of by any person or authority 
whatsoever, and excepting the portions of the prop­
erty which may be used for purposes of revenue as 
aforesaid all the remainder of said property shall fore- 
ever and in perpetuity be held for the sole uses, bene­
fits and enjoyments as herein directed and specified. 
If it should be held that said property is subject to



taxation when devoted to such uses as a park or pleas­
ure ground, 1 request that proper steps be taken to se­
cure from the State of Georgia a perpetual release 
from all liability to taxation.

“ I take occasion to say that in limiting the use and 
enjoyment of this property perpetually to white people, 
I am not influenced by any unkindness of feeling or 
want of consideration for the Negroes, or colored peo­
ple. On the contrary I have for them the kindest feel­
ing, and for many of them esteem and regard, while 
for some of them I have sincere personal affection.

“ I am, however, without hesitation in the opinion that 
in their social relations the two races should be for­
ever separate and that they should not have pleasure 
or recreation grounds to be used or enjoyed, together 
and in common. I am moved to make this bequest of 
said property for the use, benefits and enjoyment of 
the white persons herein specified, by rny gratitude to 
[fol. 86] and love of the people of the City of Macon 
from whom through a long life time I have received 
so much of personal kindness and so much of public 
honor; and especially as a memorial to my ever 
lamented and only sons, Lamar Bacon who died on the 
21st day of December 1884 and Augustus Octavius 
Bacon, Jr. who died on the 27th day of the same year. 
And I conjure all of my descendants to the remotest 
generation as they shall honor my memory and respect 
my wishes to see to it that this property is cared for, 
protected and preserved forever for the uses and pur­
poses herein indicated. I direct that said property dur­
ing the lives of my said wife and my two said daugh­
ters shall continue to be known and designated as 
‘Baconsfield’ and that after their death, it shall be 
forever and perpetually known as ‘Baconsfield,’ and 
shall be so designated in all matters, documents and 
papers relating thereto.

“ While I make no restrictions, I request that the 
Managers will preserve on the property my present 
house residence, and the smaller house nearby which I



57

have personally occupied for so many years and which 
I have called ‘The Hut’ the said houses to be used to 
the best advantage, and in such localities on the prop­
erty as may be most desirable, for the comfort, con­
venience and pleasure of the white women, girls, boys 
and children herein designated: and I trust that the 
[fol. 87] managers of said property may find it to the 
best interest of those who are to enjoy this property 
that there shall be perpetually preserved the present 
woods and trees upon the same. And I specifically direct 
that during the said trust estate in said property for 
the uses and benefit of my wife Virginia Lamar Bacon 
and of my two daughters Mary Louise Bacon Sparks, 
and Augusta Lamar Bacon Curry, neither the said 
residence house nor the said smaller house known as 
‘The Hut’ shall be removed or destroyed or materially 
altered by addition or otherwise, but that the same dur­
ing the entire terms of said trust estate for life, be 
carefully preserved in their present condition; and fur­
ther that during the terms of said trust estates and dur­
ing the lives of my said wife and my two said daugh­
ters, the woods and trees on said property be carefully 
preserved, and that on one of them be cut down or 
destroyed for any purpose whatsoever; and I further 
specifically provide and direct that the said trustees 
hereinbefore named and their successors shall not have 
power or authority to sell or otherwise alienate or dis­
pose of the tract of land thus described, bounded and 
platted or any part thereof during the continuance of 
said trust or trusts or at any other time, under any 
circumstances and upon any account whatsoever, and 
all such power to make such sale or alienation is hereby 
hereby expressly denied to them, and to all others.”

[fol. 88] “ Item 10th
“ To make still further provision for the preserva­

tion, management and improvement of the property 
set apart in the foregoing 9th Item of this Will as a 
park and pleasure grounds as aforesaid, I will and be-



58

queatli to the Mayor and Council of the City of Macon, 
and to their successors, ten bonds of the Macon Rail­
way and Light Co., each of said ten bonds being for 
$1000.00 and in the aggregate being for $10,000.00 and 
bearing interest at the rate of five per centum per 
annum, and at present in the custody of the The Riggs 
National Bank in Washington, D. C., the said bonds 
and all monies or things of value resulting and derived 
therefrom to be held by the said Mayor and Council 
of the City of Macon and their successors for the fol­
lowing trusts and uses, to-wit: So long as the prop­
erty known and to be known perpetually as ‘Bacons- 
field,’ specified, bounded and described in the foregoing 
9th Item of this Will, shall continue to be held in trust 
by the Trustees named in the said foregoing 9th Item 
and their successors for the use and beiefit of my said 
wife and my two said daughters, or either of them, 
until the said property shall vest in the Mayor and 
Council of the City of Macon to be held in trust for 
the purposes specified and for the uses directed in the 
said 9th Item. The said Mayor and Council of the 
City of Macon shall as said Trustees collect the semi- 
[fol. 89] annual interest which shall be paid on said 
bonds, and as promptly as practicable invest the same 
in interest bearing bonds to be added to and included 
in said trust fund; and the interest received on the 
additional bonds thus purchased, and from all other 
bonds additional thereto resulting from and accruing 
to said fund, shall in like manner be reinvesting in 
interest bearing bonds, so that all income from said 
fund or in any manner accuring to said fund shall as 
far as practicable be semi-annually compounded and 
added to the principal of the original fund. When the 
said 9th Item and their cussessors shall cease to hold 
said property in trust for my said wife and my said 
daughters, as provided in the said 9th Item, and when 
as therein provided, the Mayor and Council of the City 
of Macon shall as Trustees be vested with said property 
and the title to the same for the uses therein set



59

forth, they shall as may be required for the preserva­
tion, maintenance and improvement of said park and 
pleasure ground, pay over to the Board of Managers 
hereinbefore provided for, the income subsequently 
received from said trust fund constituted of and re­
sulting from the said bonds; and all income derived 
from said property, and from said bonds, and the 
proceeds thereof, when not required for the needs of 
said park and pleasure ground, be added to the said 
principal fund, to the end that from increased income 
it may be in greater and ever increasing degree beauti- 
[fol. 90] ful and developed and equipped for the benefit 
and enjoyment of those for whose pleasure and happi­
ness it is designated. I f for any reason it should be 
held that the Mayor and Council of the City of Macon 
have not the legal power under the charter of the City 
to hold said fund in trust for the purposes specified, 
then unless said power is obtained through appropriate 
legislation, I direct that the powers herein expressed 
be conferred upon a trustee to be selected by the Mayor 
and Council of the City of Macon, with such safeguards 
and restrictions as may be prescribed by them for the 
perpetual safekeeping and management of the fund. 
And I give a similar direction if for any reason it 
should be held that the Mayor and Council of the City 
of Macon have not the legal power under their charter 
to hold in trust for the purposes specified the property 
designated for said park and pleasure ground, unless 
said required power is conferred by appropriate legis­
lation. Should the Mayor and Council of the City of 
Macon at any time consent to do so, then I direct that 
they be authorized to receive the fund constituted of 
said bonds and all additions thereto and the proceeds 
thereof, and cover the same into the treasury of the 
City, in consideration of the perpetual obligation of 
the City to be evidenced by its bond or otherwise, to 
provide and pay over annually to the said Board of 
Managers an amount equal to five jjer centum interest 
[fol. 91] upon the sum thus covered into the treasury,



60

to be devoted by said Board to the uses hereinbefore 
specified. In making this bequest as expressed in this 
and the preceding item of my Will, I have been mind­
ful to preserve the full use and enjoyment of the real 
estate to my wife and daughters during their natural 
lives, and also of the fact that the entire bequest in 
value represents a very much smaller proportion of 
my estate than would have been the share in it of my 
two sons had they lived. As there will be no one of 
my descendants who now bears my name by right of 
birth, or through voluntary choice, an additional rea­
son is furnished why I should deem it proper that in 
devoting this property to the uses specified, I should 
at the same time link their memories with the plea­
sures and enjoyments of the women and children and 
girls and boys of their own race in the community of 
which they once formed a happy part.”

and,

W h e r e a s , under certain decisions of the Federal courts 
the City of Macon has realized that it could not as a munici­
pal corporation carry out all of said provisions; and

W h e r e a s , the Mayor and Council deem it to be in the 
public interest that Baconsfield be operated and maintained 
for the benefit of the public rather than for private benefit 
or profit; and

W h e r e a s , the Mayor and Council are greatly concerned 
[fob 92] that if Baconsfield is not operated and maintained 
in accordance with all of the provisions of the Will of 
Senator Bacon, the property may revert to private persons 
who are heirs at law of or legatees under the Will of 
Senator Bacon, in which case Baconsfield would become 
commercial or residential property or property of a nature 
wherein no part of the public would have the enjoyment of 
the property contemplated by Senator Bacon; and

W h e r e a s , the City is advised that the income producing 
property which the late Senator Bacon bequeathed in trust 
for the purpose of maintaining Baconsfield is sufficient for



61

that purpose and that if the Court decides to appoint new 
Trustees the park may be economically maintained by the 
Trustees in accordance with the expressed intentions of the 
late Senator Bacon, and at no cost to the City in connection 
with such operations and maintenance; and

W hereas, it is the considered opinion of the Mayor and 
Council that it is against good conscience for the City of 
Macon to continue to serve as Trustee under said Will 
under circumstances where as such Trustee it cannot carry 
out the plain and unambiguous terms of the trust; and

W hereas, in the light of the foregoing it is the considered 
opinion of the Mayor and Council that the City of Macon 
should forthwith resign as Trustee under the Will of Sena­
tor Bacon;

Now, T herefore, be it resolved by the Mayor and Council 
of the City of Macon, and it is hereby resolved, that the 
City of Macon forthwith resign as Trustee under the trust 
established in Items 9th and 10th of the Will of the late 
Senator Augustus Octavius Bacon.
[fol. 93] R esolved F urther, that the Mayor and the Clerk 
of Council be authorized to sign in the name of the City 
of Macon a written resignation of such trust and deliver 
the same to Mr. Trammell F. Shi, City Attorney, with in­
structions to him to deliver it to the Superior Court of 
Bibb County, Georgia, in the litigation now pending insti­
tuted by the Board of Managers of Baconsfield, created in 
said Will, against the City of Macon and others.

[fol. 94]
E xhibit “ B ” to A mendment to A nswer

R esignation of the City of Macon as Trustee 
Under W ill of Senator A ugustus Octavius Bacon

Pursuant to a resolution adopted on the 4th day of 
of February, 1964, by Mayor and City Council of the City 
of Macon, the City of Macon hereby resigns as Trustee of 
the property known as Baconsfield under the trust estab-



62

lislied in Items 9th and 10th of the Will of the late Senator 
Augustus Octavius Bacon.

1st W itness W hereof, as directed in the aforesaid resolu­
tion, the City of Macon has caused these presents to be 
executed by the Mayor and the Clerk of Council and its 
seal affixed, this the 4th day of February, 1964.

T he City of Macon

By B. F. Merritt, Jr.
Mayor of the City of Macon

Attest: Alex B. Cameron 
Clerk of Council 
City of Macon

(Seal of the City of Macon)

[File endorsement omitted]

[fol. 95]
In the S uperior Court, B ibb County, Georgia 

No. 25864 
Bill in Equity 
[Title omitted]

A mendment to Intervenors’ P etition—■
Filed March 5, 1964

Comes now, the intervenors in the above-styled case, 
Rev. E. S. Evans, Louis H. Wynne, Rev. J. L. Key, Rev. 
Booker W. Chambers, William Randall, and Rev. Van J. 
Malone, and by leave of Court first had and obtained, 
amend their petition by adding thereto four additional para­
graphs to be known as paragraphs 12, 13, 14, and 15, and 
a prayer, as follows:

12.

That the equal protection clause of the Fourteenth 
Amendment to the United States Constitution prohibits 
this Court from enjoining Negroes from use of the park.



63

13.
That the equal protection clause of the Fourteenth 

Amendment prohibits this Court from accepting the resig­
nation of the City of Macon as trustee and appointing new 
trustees for the purpose of enjoining the racially discrimina­
tory provision in the will of A. 0. Bacon.

14.
That Georgia Code Annotated, Section 69-504 prescribes 

racial discrimination and is therefore violative of the equal 
[fol. 96] protection clause to the Fourteenth Amendment. 
Since the racially discriminatory provision in A. 0. Bacon’s 
will was dictated by that unconstitutional statute, enforce­
ment of the racially discriminatory provision is constitu­
tionally prohibited.

15.
Georgia Code Annotated, Section 108-202, properly con­

strued, requires that the racially discriminatory provision 
in A. 0. Bacon’s will be declared null and void.

Wherefore, the intervenors respectfully pray that this 
Courtjwithhold approval of the attempted resignation of the 
City of Macon as trustee under the will of A. 0. Bacon, 
direct the City of Macon to continue to fulfill this para­
mount constitutional obligation to administer the park on 
a racially non-discriminatory basis,land deny the injunction 
sought By"plaintiffs to exclude Negroes from use of the 
park.

Wherefore, the intervenors pray that this amendment be 
allowed.

Donald L. Hollowell, 859y2 Hunter St., N. W., At­
lanta, Georgia 30314, Attorney For Intervenors.

William H. Alexander, Of Counsel For Intervenors.



64

[fol. 97]
Order— March 5, 1964

The foregoing amendment read and considered,
It Is Ordered that the same be filed, subject to objections.
This 5 day of March, 1964.

0. L. Long, Judge, Superior Court, Macon Judicial 
Circuit.

[File endorsement omitted]
Certificate of Service (omitted in printing).

[fol. 99]
In the Superior Court, B ibb County, Georgia 

No. 25864 
Bill in Equity

Charles E. Newton, et al.,

v.

City of Macon, et al.

Order and Decree— March 10, 1964
The Motion for Summary Judgment filed in behalf of 

petitioners in the above captioned matter having come on 
regularly to be heard, and the Court having duly considered 
all pleadings filed in behalf of all parties to said cause 
and the briefs filed in behalf of petitioners and the inter- 
venors Rev. E. S. Evans, Louis H. Wynne, Rev. J. L. Key, 
Rev. Booker W. Chambers, William Randall, and Rev. Van 
J. Malone, it is

Considered, Ordered and Adjudged as follows:
(1) The intervenors named above are proper parties 

to this case and are proper representatives of the class



65

which their intervention states they represent, to-wit, the 
negro citizens of Bibb County, Georgia, and the City of 
Macon, Georgia.

(2) The defendants Guyton G. Abney, J. D. Crump, T. I. 
Denmark and Dr. W. G. Lee, as successor Trustees under 
the Last Will and Testament of Augustus Octavius Bacon, 
deceased, are also proper parties to the case, as are the in­
terveners A. 0. B. Sparks, Willis B. Sparks, Jr., Virginia 
Lamar Sparks and M. Garten Sparks.

(3) The defendant the City of Macon having submitted 
its resignation as Trustee of the property described in the 
petition and known as Baconsfield, said resignation is here- 
[fol. 100] by accepted by the Court.

(4) Under the principle that a trust shall not fail for 
want of a trustee it becomes the duty of this Court to ap­
point new trustees to serve in lieu of the City of Macon; 
and the following, all being citizens and residents of Bibb 
County, Georgia, are hereby appointed as Trustees, to-wit, 
Hugh M. Comer, Lawton Miller and B. L. Register.

(5) The Court hereby retains jurisdiction for the pur­
pose of appointing another trustee or trustees in the event 
any of the persons named above fails to accept his appoint­
ment or in the event of the future death, incompetency or 
other cause whereby any or all of such Trustees fail or 
cease to act as such.

(6) Since the relief herein granted is also that primarily 
sought by the defendants Guyton G. Abney, et ah, as Trus­
tees under the Last Will and Testament of Augustus 
Octavius Bacon and by intervenors A. 0. B. Sparks, Willis 
B. Sparks, Jr., Virginia Lamar Sparks and M. Garten 
Sparks, it is therefore unnecessary to pass upon and the 
Court does not pass upon the secondary contentions outlined 
in paragraph 5 of the amendment to the answer and cross 
bill filed by Guyton G. Abney, et ah, as Trustees and in 
paragraph 6 of the petition for intervention filed by the 
above named intervening heirs.



66

So Ordered, this the 10 day of March, 1964.
0. L. Long, J.S.C.M.C. 

[File endorsement omitted]

[fol. 101]
A ttachment to Obdeb

R esignation oe the City of Macon as T bustee
Undeb W ill of Senatob A ugustus Octavius Bacon

Pursuant to a resolution adopted on the 4th day of 
February, 1964, by Mayor and City Council of the City 
of Macon, the City of Macon hereby resigns as Trustee of 
the property known as Baconsfield under the trust estab­
lished in Items 9th and 10th of the Will of the late Senator 
Augustus Octavius Bacon.

I n  W itness W heeeof, as directed in the aforesaid resolu­
tion, the City of Macon has caused these presents to be 
executed by the Mayor and the Clerk of Council and its 
seal affixed, this the 4th day of February, 1964.

T he City of Macon

By B. F. Merritt, Jr.
Mayor of the City of Macon

Attest: Alex B. Cameron 
Clerk of Council 
City of Macon

(Seal of the City of Macon)

F iled in Office 
5 day of Feb. 1964 

Era B. Goodner 
Deputy Clerk



67

i[fol. 102]
In the Superior Court, B ibb County, Georgia 

No. 25864 
Bill in Equity 
[Title omitted]

A cceptance of T rust— Filed March 12,1964
Come now the undersigned, Hugh M. Comer, Lawton 

Miller and B. L. Register, and pursuant to the Order and 
Decree of Honorable 0. L. Long, Judge, Superior Courts, 
Macon Circuit, dated March 10, 1964, hereby formally ac­
cept their appointment as successor Trustees under Items 
IX  and X  of the Last Will and Testament of Augustus 
Octavius Bacon, Deceased.

This llt,h day of March, 1964.
Hugh M. Comer, Lawton Miller, B. L. Register. 

[File endorsement omitted]
[fol. 103] Clerk’s Certificate to foregoing transcript 
(omitted in printing).

[fol. 105]
I n  the Supreme Court of the State of Georgia 

Docket No. 22534

Rev. E. S. Evans, et al., Plaintiffs-in-error,
—vs.—

Charges E. Newton, et al., Defendants-in-error.

Motion to A mend B ill of E xceptions—
Filed May 8,1964

To the Honorable Chief Justice and the Honorable Justices 
of the Supreme Court of Georgia:

Comes now the plaintiffs-in-error, Rev. E. S. Evans, 
et al. in the above-styled case which is before this Honor-



68

able Court by virtue of being an equity action from the 
Superior Court of Bibb County, who with leave of Court, 
and pursuant to Georgia Code Annotated, Sections 6-913, 
6-1309, 6-1401, and 81-1301, amend page one (1) of their 
bill of exceptions by striking the designation of plaintiffs- 
in-error and defendants-in-error, respectively, and substi­
tuting therefor the following:

Rev. E. S. Evans, Louis H. Wynn, Rev. J. L. Key, 
Rev. Booker W. Chambers, William Randall, and 
Rev. Van J. Malone, Plaintiffs-in-error,

—vs.—
The City of Macon; A. 0. B. Sparks, Willis B. Sparks, 

Jr., Virginia Lamar Sparks, M. Barton Sparks, 
Heirs at law of A. 0. Bacon; Guyton Adley, J. D. 
Crump, J. J. Denmark, Dr. W. G. Lee, Successor 
Trustees under the Will of A. O. Bacon; Hugh M. 
[fol. 106] Comer, Lawton Miller, and B. L. Register, 
Successor Trustees in lieu of the City of Macon, 
Defendants-in-error.

Wherefore, plaintiffs-in-error pray that this their amend­
ment be allowed.

Donald L. Hollowell, William H. Alexander, Attor­
neys for Plaintiffs-in-Error.

[fol. 107] Certificate of Service (omitted in printing).

[fol. 108]
Order

The foregoing Amendment having been read and con­
sidered, the same is allowed and ordered filed.

.......................................... , Justice, Supreme Court of
Georgia.

[fol. 109] [File endorsement omitted]



69

[fol. 110]
I n the Supreme Court op the State op Georgia 

Docket No. 22534

[Title omitted]

Second Motion to A mend B ill of Exceptions—
Filed May 18,1964

To the Honorable Chief Justice and the Honorable Justices 
of the Supreme Court of Georgia:

Comes now the plaintiffs-in-error, Kev. E. S. Evans, 
et al. in the above-styled case which is before this Honor­
able Court by virtue of being an equity action from the 
Superior Court of Bibb County, who with leave of Court, 
and pursuant to Georgia Code Annotated, Sections 6-913, 
6-1309, 6-1401, and 81-1301, amend page one (1) of their 
bill of exceptions by striking the designation of plaintiffs- 
in-error and defendants-in-error, respectively, and substi­
tuting therefor the following:

Rev. E. S. Evans, Louis H. Wynn, Rev. J. L. Key, 
Rev. Booker W. Chambers, William Randall, and 
Rev. Van J. Malone, Plaintiffs-in-error,

—vs.—
The City of Macon; A. 0. B. Sparks, Willis B. Sparks, 

Jr., Virginia Lamar Sparks, M. Barton Sparks, 
Heirs at law of A. O. Bacon; Guyton Adley, J. D. 
Crump, J. J. Denmark, Dr. W. G. Lee, Successor 
Trustees under the Will of A. O. Bacon; Charles 
[fol. I l l ]  Newton, Mrs. T. J. Stewart, Frank M. 
Willingham, Mrs. Francis K. Hall, George P. Ran­
kin, Jr., Mrs. Frederic W. Williams, and Mrs. Ken­
neth Dunwoody, Members of the Board of Managers 
under will of A. O. Bacon; Hugh M. Comer, Lawton 
Miller, and B. L. Register, Successor Trustees in 
lieu of the City of Macon, Defendants-in-error.



70

Wherefore, plaintiifs-in-error pray that this their amend­
ment be allowed.

D. L. Hollowell, William H. Alexander, Attorneys for 
Plain tiffs-in-Error.

[fol. 112] Certificate of Service (omitted in printing).

[fol. 113]
O rder

The foregoing Amendment having been read and con­
sidered, the same is allowed and ordered filed.

........................................ , Justice, Supreme Court of
Georgia.

[fol. 114] [File endorsement omitted]

[fol. 115]
In the Supreme Court of the State of Georgia 

Docket No. 22534

[Title omitted]

Motion of Charles E. Newton, et al. to Substitute 
Parties Defendant-in-E rror— Filed May 27,1964

To the Honorable Chief Justice and the Honorable Justices 
of the Supreme Court of Georgia:

Come now the defendants-in-error, Charles E. Newton, 
Mrs. T. J. Stewart, Frank M. Willingham, Mrs. Francis K. 
Hall, George P. Rankin, Jr., Mrs. Frederick W. Williams 
and Mrs. Kenneth W. Dunwody and for reasons which will 
hereinafter appear, pray that this Honorable Court sub­
stitute as parties defendant-in-error in place of Charles E. 
Newton, Mrs. T. J. Stewart, Mrs. Frederick W. Williams 
and Mrs. Kenneth W. Dunwody the four following named 
residents of Macon, Bibb County, Georgia:



71

A. M. Anderson 
Mrs. Dan O’Callaghan 
Mrs. E. A. McCord, Jr.
Mrs. W. E. Pendleton, Jr.

In support of this motion the movants respectfully show 
to this Court the following facts. After the Trial Court 
entered its order on March 10, 1964, appointing Hugh 
Comer, Lawton Miller and B. L. Register as Trustees of 
Baeonsfield, movants herein tendered to these three new 
Trustees their resignations as members of the Board of 
Managers of Baeonsfield. This joint resignation was sub- 
[fol. 116] miffed to the Trustees on March 18, 1964.

Thereafter, on May 21, 1964, at a time when the record 
from the Trial Court had already been docketed in the 
Supreme Court of Georgia, a meeting was held at which 
the above named three Trustees formally accepted the resig­
nations previously tendered to them and appointed a new 
Board of Managers to consist of the following persons:

A. M. Anderson 
Mrs. Francis K. Hall 
Mrs. E. A. McCord, Jr.
Mrs. Dan O’Callaghan 
Mrs. W. E. Pendleton, Jr.
George P. Eankin, Jr.
Frank M. Willingham

These seven appointees thereupon accepted their appoint­
ments in writing.

A copy of the resignation of the members of the former 
Board of Managers is attached hereto as Exhibit “ A ” . 
The acceptance of this resignation and the appointment of 
a new Board by the three Trustees and the acceptance of 
this appointment by the new Board of Managers is at­
tached hereto as Exhibit “ B” . Movants hereby incorporate 
these two exhibits by reference.

Four of the seven positions on the Board of Managers 
are now filled by persons who did not serve on the Board 
as it was constituted at the time this case was docketed in



72

the Supreme Court of Georgia, and who have never served 
on the Board before.

Wherefore, movants pray that A. M. Anderson, Mrs. 
R. A. McCord, Jr., Mrs. Dan O’Callaghan and Mrs. W. E. 
[fol. 117] Pendleton, Jr. may be made parties defendant- 
in-error and that Charles E. Newton, Mrs. T. J. Stewart, 
Mrs. Frederick W. Williams and Mrs. Kenneth W. Dun- 
wody may be stricken as parties defendant-in-error.

Jones, Sparks, Benton & Cork, Attorneys for Defen- 
dants-in-Error, Board of Managers of Baconsfield.

Address of Counsel:
1007 Persons Building, Macon, Georgia, SHerwood 

5-2821.

[fol. 118]
Georgia, B ibb County.

A cknowledgment of Service, W aiver and Consent 
by New B oard Members

Come now A. M. Anderson, Mrs. Dan O’Callaghan, Mrs. 
R. A. McCord, Jr., and Mrs. W. E. Pendleton, Jr., and ask 
that they may be substituted as parties defendant in error 
in accordance with the attached motion of Charles E. New­
ton, et al., acknowledge service of the bill of exceptions, 
waive all further service and notice and consent that the 
case may proceed.

This 21st day of May, 1964.
A. M. Anderson, Mrs. Dan O’Callaghan, Mrs. R. A. 

McCord, Jr., Mrs. W. E. Pendleton, Jr.



73

[fol. 119]
Exhibit “ A ” to Motion to Substitute P arties 

D efendant in E rror

Georgia, B ibb County.

R esignation of B oard of Managers of B aconsfield

Come now Charles E. Newton, Mrs. T. J. Stewart, Frank 
M. Willingham, Mrs. Francis K. Hall, George P. Rankin, 
Jr., Mrs. Frederick W. Williams and Mrs. Kenneth W. 
Dunwody, all of said State and County, in their respective 
capacities as members of the Board of Managers of Bacons­
field and pursuant to the order of Honorable 0. L. Long, 
Judge Superior Courts, Macon Circuit, dated March 10, 
1964, the resignation of The City of Macon as Trustees 
under Items IX  and X  of the Last Will and Testament of 
Augustus Octavius Bacon, deceased, having been accepted; 
and three (3) individual Trustees having been appointed by 
the said Superior Court to serve in lieu of The City of 
Macon in said capacity, the undersigned do hereby tender 
to said Trustees their respective resignations as members 
of said Board of Managers of Baconsfield.

This 18th day of March, 1964.
/ s /  Charles E. Newton, Jr.

/ s /  Mrs. T. J. Stewart 

/ s /  F rank M. W illingham 

/ s /  Mrs. F rancis K. H all 

/ s /  George P. R ankin, Jr.
/ s /  Mrs. F rederick W. W illiams 

/ s / Mrs. K enneth W. D unwody



74

[fol. 120]
E xhibit “ B ” to Motion to Substitute P arties 

Defendant in E rror

Georgia, B ibb County.

A cceptance of R esignation of B oard of Managers

Come now Hugh M. Comer, Lawton Miller and B. L. 
Register and after due consideration formally accept the 
resignation of Charles E. Newton, Frank M. Willingham, 
George P. Rankin, Jr., Mrs. Francis K. Hall, Mrs. T. J. 
Stewart, Mrs. Frederick W. Williams, and Mrs. Kenneth W. 
Dunwody from the Board of Managers of Baconsfield, such 
resignation being dated March 18, 1964.

This the 21st day of May, 1964.
/ s /  H u gh  M. Comer 

Hugh M. Comer
/ s /  L a w t o n  M ille r  

Lawton Miller
/ s /  B. L. R egister 

B. L. Register

A ppointment of New B oard of Managers

Further, we, the said Hugh M. Comer, Lawton Miller and 
B. L. Register hereby appoint to the Board of Managers 
of Baconsfield for terms of office to begin immediately, the 
following persons: A. M. Anderson, Mrs. Francis K. Hall, 
Mrs. R. A. McCord, Jr., Mrs. Dan O’Callaghan, Mrs. W. 
E. Pendleton, Jr., George P. Rankin, Jr., and Frank M. 
Willingham.

This the 21st day of May, 1964.
/ s /  H u gh  M. Comer 

Hugh M. Comer
/ s /  Lawton Miller 

Lawton Miller
/ s /  B. L. R egister 

B. L. Register



75

[fol. 121]
A cceptance oe A ppointment by New B oard

Come now A. M. Anderson, Mrs. Francis K. Hall, Mrs. 
R. A. McCord, Jr., Mrs. Dan 0 ’Callaghan, Mrs. W. E. 
Pendleton, Jr., George P. Rankin, Jr., and Frank M. W il­
lingham and accept appointment to the Board of Managers 
of Baconsfield for terms to begin immediately.

This the 21st day of May, 1964.
/ s /  A . M. A nderson 

A . M. Anderson
/ s /  M rs. F rancis K. H all 

Mrs. Francis K. Hall
/ s /  M rs. R. A . M cCord, J r .

Mrs. R. A. McCord, Jr.
/ s /  Mrs. Dan O’Callaghan 

Mrs. Dan O’Callaghan
/ s /  Mrs. W. E. P endleton, Jr.

Mrs. W. E. Pendleton, Jr.
/ s /  G eorge P. R a n k in , J r .

George P. Rankin, Jr.
/&/ F rank M. W illingham 

Frank M. Willingham

[fol. 122]
Order Granting Motion to Substitute P arties 

Defendant, etc.— June 6, 1964
The within motion having been presented to this Court 

and it being made to appear that A. M. Anderson, Mrs. Dan 
O’Callaghan, Mrs. R. A. McCord, Jr. and Mrs. W. E. 
Pendleton, Jr. have consented to be made parties defendant 
in error and have acknowledged service of the bill of ex­
ceptions and have waived all further service and notice 
and have consented that the case may proceed:

Wherefore, It Is Hereby Ordered and Adjudged that 
A. M. Anderson, Mrs. Dan O’Callaghan, Mrs. R. A. McCord, 
Jr. and Mrs. W. E. Pendleton, Jr. are made additional



76

parties defendant in error and that Charles E. Newton, 
Mrs. T. J. Stewart, Mrs. Frederick W. Williams and Mrs. 
Kenneth W. Dunwody are hereby stricken as parties de­
fendant in error.

This the 6th day of June, 1964.
........................................., Presiding Justice, Supreme

Court of Georgia.

[fol. 123]
Certificate of Service 

Georgia, Bibb County.
I, Willis B. Sparks, III, of counsel of record for the 

defendants-in-error, the Members of the Board of Managers 
of Baconsfield, certify that I have served the foregoing mo­
tion and accompanying two exhibits and acknowledgment of 
service and waiver by the four new Board members and 
order upon the plaintiffs-in-error by mailing a copy of the 
same to their attorney of record, Donald L. Hollowell, at 
his office at 859% Hunter Street, Northwest, Atlanta, 
Georgia.

I further certify that I have mailed a copy of all the 
above described documents to Mr. Jack Greenberg, 10 
Columbus Circle, New York, New York, Mr. Greenberg 
appearing on the brief of the plaintiffs-in-error as co­
counsel in the case.

I further certify that I have served the defendant-in­
error, City of Macon, by mailing a copy of the said motion 
and the said two accompanying exhibits and the said ac­
knowledgment of service and waiver by the four new 
Board members and order to its attorney of record, Tram­
mell F. Shi, at his office in the Southern United Building- 
in Macon, Georgia.

I acknowledge service on behalf of Guyton Abney, et al., 
as Successor Trustees under the Will of A. 0. Bacon and I 
further acknowledge service for W. B. Sparks, Jr., et al., 
as the ‘‘ Sparks heirs” of A. 0. Bacon.

This the 26th day of May, 1964.
Willis B. Sparks, 3rd.

[fol. 124] [File endorsement omitted]



77

[fol. 125]
In the Supreme Court oe the State of Georgia 

Docket No. 22534

R ev. E. S. E vans, L ouis H. W ynjt, Rev. J. L. K ey, R ev. 
B ooker W. Chambers, W illiam R andall, and R ev. V an 
J. Malone, Plaintiffs-in-Error,

vs.
T he C ity of Macon: A. 0 . B. Sparks, Jr., V irginia L amar 

Sparks, M. B arton Sparks, Heirs at Law of A. 0. 
B acon; Guyton A dley, J. D. Crump, J. J. Denmark, 
Dr. W. G. Lee, Successor Trustees under the Will of 
A. 0. B acon; Charles Newton, Mrs. T. J. Stewart, 
F rank M. W illingham, Mrs. F rancis K. H all, George 
P. R ankin, Jr., Mrs. F rederick W. W illiams, and Mrs. 
K enneth Dunwoody, Members of the Board of Man­
agers under Will of A. 0. Bacon; Hugh M. Comer, 
Lawton Miller, and B. L. R egister, Successor Trustees 
in Lieu of The City of Macon, Defendants-in-Error.

Motion to Add P arties Defendant-in-Error and to Deny 
Defendants-in -Error’s Motion to Substitute Parties 
Defendant-in-Error—Filed June 4, 1964

To the Honorable Chief Justice and the Honorable Justice 
of the Supreme Court of Georgia:

Come now the plaintiffs-in-error, Rev. E. S. Evans, 
Louis H. Wynn, Rev. J. L. Key, Rev. Booker W. Chambers, 
William Randall, and Rev. Van J. Malone in the above- 
styled case and pray that this Honorable Court add the fol­
lowing named persons as defendants-in-error: A. M. Ander­
son, Mrs. Dan O’Callaghan, Mrs. R. A. McCord, Jr., and 
Mrs. W. E. Pendleton, Jr., and deny the defendants-in- 
error’s motion to substitute these named defendants-in- 
error in lieu of defendants-in-error Charles E. Newton, 
Mrs. T. J. Stewart, Frank M. Willingham, Mrs. Francis K. 
Hall, for the following reasons:



78

[fol. 126] The said motion filed in this Honorable Court 
by defendants-in-error Charles E. Newton, Mrs. T. J. 
Stewart, Frank M. Willingham, Mrs. Francis K. Hall, 
George P. Eankin, Jr., Mrs. Frederick W. Williams and 
Mrs. Kenneth W. Dunwoody shows that they submitted 
their resignations as members of the Board of Managers of 
Baconsfield. This joint resignation was submitted to Hugh 
Comer, Lawton Miller, and B. L. Register, new trustees 
of Baconsfield, on March 18, 1964. The said resignations 
were accepted by the said Trustees on May 21, 1964. How­
ever, the appeal of this case to this Honorable Court by the 
plaintiffs-in-erro r was docketed in this Honorable Court 
on May 8,1964. The said new trustees, having been notified 
that the appeal was docketed, had no authority to accept 
the resignation of the named defendants-in-error or to take 
any other action affecting the status of the parties or 
property involved in this case, pending a determination of 
the issues involved in this case by this Honorable Court. 
Therefore, plaintiffs-in-error submit that the attempted 
resignation by the named defendants-in-error was null and 
void.

Wherefore, plaintiffs-in-error pray that:
(1) A. M. Anderson, Mrs. R. A. McCord, Jr., Mrs. Dan 

O’Callaghan, and Mrs. W. E. Pendleton, Jr., be made parties 
defendants-in-error; and

(2) The defendants-in-error’s prayer that Charles E. 
Newton, Mrs. T. J. Stewart, Mrs. Frederick W. Williams, 
and Mrs. Kenneth W. Dunwoody be stricken as parties 
defendant-in-error, be denied.

Donald L. Hollowell, William H. Alexander, 859% 
Hunter Street, Northwest, Atlanta, Georgia.

Jack Greenberg, James M. Nabrit, III, 10 Columbus 
Circle, New York, New York 10019, Attorneys for 
Plaintiff s-in-Err or.

[fol. 127] Certificate of Service (omitted in printing).



79

[fol. 128]
Order

The foregoing motion having been read and considered, 
the same is allowed and ordered filed.

Wherefore, it is ordered and adjudged that A. M. Ander­
son, Mrs. Dan O’Callaghan, Mrs. K. A. McCord, Jr., and 
Mrs. W. E. Pendleton, Jr. are made parties defendant-in­
error. Further, the motion of the defendants-in-error to 
strike Charles E. Newton, Mrs. T. J. Stewart, Mrs. Fred­
erick W. Williams, and Mrs. Kenneth W. Dunwoody, re­
ferred to in this motion, is denied.

This the day of June, 1964.

Georgia.
Justice, Supreme Court of

[fol. 129] [File endorsement omitted]

[fol. 130]
I n  the Supreme Court of the State of Georgia 

Docket No. 22534

E. S. E vans et ah,
v.

Charles E. Newton et al.

Order Granting Second Motion to A mend the 
B ill of E xceptions, etc .— September 25, 1964

Upon consideration of the second motion to amend the 
bill of exceptions by E. S. Evans et al., the designated plain­
tiffs in error in this case, filed in the Supreme Court on 
May 18, 1964, so as to substitute the plaintiffs in error 
designated m the said motion for those designated in the 
bill of exceptions and to substitute the defendants in error 
designated in the said motion for those designated in the



so

bill of exceptions, it is ordered that the said motion be 
hereby granted.

Let a copy of this order be mailed to counsel for each 
side.

[fol. 131]
In the Supreme Court of the State of Georgia 

Docket No. 22534

E. S. E vans et ah,

v.

Charles E. Newton et al.

Order Granting Motion by C harles E. Newton et al., 
Defendants in E rror, etc.— September 28, 1964

Upon consideration of the motion by Charles E. Newton 
et al., defendants in error in this case, to make A. M. Ander­
son, Mrs. R. A. McCord, Mrs. Dan O’Callahan and Mrs. 
W. E. Pendleton, Jr., parties defendant in error and to 
strike Charles E. Newton, Mrs. T. J. Stewart, Mrs. Fred­
erick W. Williams and Mrs. Kenneth W. Dunwoody as par­
ties defendant in error, it is ordered that the said motion 
be granted in so far as it names additional parties defen­
dant in error and is denied in so far as it seeks to strike 
parties defendant in error.

Let a certified copy of this order be mailed to counsel 
for each side.



81

[fol. 132]
I n the Supreme Court of the State of Georgia 

Docket No. 22534

E vans et al.,

v.
Newton et al.

The record does not support the contentions of the plain­
tiffs in error, and the judge could not properly have gone 
beyond the judgment rendered. The judgment is not shown 
to be erroneous for any of the reasons urged by counsel 
for the plaintiffs in error.

Argued June 8,1964 
Decided September 28,1964 

Rehearing denied October 8,1964.
Equitable petition. Bibb Superior Court. Before Judge 

Long.

[fol. 133]
Opinion— September 28, 1964

The will of A. 0. Bacon (which was probated in solemn 
form) in Item Nine gave in trust described property, to be 
known as “ Baconsfield,” to named trustees for the benefit of 
his wife and two named daughters for their joint use, bene­
fit, and enjoyment during the term of their natural lives. 
It was provided that upon the death of the last survivor, 
the property, including all remainders and reversions, “ shall 
thereupon vest in and belong to the Mayor and Council of 
the City of Macon, and to their successors forever, in trust 
for the sole, perpetual and unending, use, benefit and en­
joyment of the white women, white girls, -white boys and 
white children of the City of Macon to be by them forever



used and enjoyed as a park and pleasure ground, subject 
to the restrictions, government, management, rules and con­
trol” of a board of managers consisting of seven persons, 
not less than four to be white women and all seven to be 
white persons. In order to provide for the maintenance of 
the park, income from described real property and bonds 
was to be expended by the board of managers.

Charles E. Newton and others, as members of the Board 
[fol. 134] of Managers of Baconsfield, brought an equitable 
petition against the City of Macon (in its capacity as trus­
tee under Item Nine of the will of A. 0. Bacon), and Guyton 
G. Abney and others, as successor trustees under the will 
holding assets for the benefit of certain residuary beneficiar­
ies. It was alleged: The city as trustee holds the legal 
title to a tract of land in Macon, Bibb County, known as 
Baconsfield, under Item Nine of the will of A. 0. Bacon. 
As directed in the will, the board through the years has 
confined the exclusive use of Baconsfield to those persons 
designated in the will. The city is now failing and refusing 
to enforce the provisions of the will with respect to the 
exclusive use of Baconsfield. Such conduct on the part of 
the city constitutes such a violation of trust as to require 
its removal as trustee. It was prayed that: the city be re­
moved as a trustee under the will; the court enter a decree 
appointing one or more freeholders, residents of the city, to 
serve as trustee or trustees under the will; legal title to 
Baconsfield and any other assets held by the city as trus­
tee be decreed to be in the trustee or trustees so appointed 
[fol. 135] for the uses originally declared by the testator; 
and for further relief.

The City of Macon filed its answer asserting that it can 
not legally enforce racial segregation of the property known 
as Baconsfield, and therefore it is unable to comply with 
the specific intention of the testator with regard to main­
taining the property for the exclusive use, benefit, and en­
joyment of the white women, white girls, white boys, and 
white children of the city. The city prayed that the court 
construe the will and enter a decree setting forth the duties 
and obligations of the city in the premises. The other



83

defendants admitted the allegations of the petition and 
prayed that the city be removed as a trustee. The peti­
tioners thereafter hied a motion for summary judgment.

Reverend E. S. Evans and others, alleging themselves 
to be Negro residents of the City of Macon, on behalf of 
themselves and other Negroes similarly situated, hied an 
intervention in the cause and asserted: The restriction and 
limitation reserving the use and enjoyment of Baconsheld 
[fol. 136] Park to “ white women, white girls, white boys 
and white children of the City of Macon,” is violative of the 
public policy of the United States of America and violative 
of the Constitution and laws of the State of Georgia. The 
court as an agency of the State of Georgia can not, con­
sistently with the equal protection clause of the Four­
teenth Amendment of the Constitution of the United States 
and the equivalent provision of the Constitution of the 
State of Georgia, enter an order appointing private citizens 
as trustees for the manifest purpose of operating, man­
aging, and regulating public property (which passed to the 
City of Macon under charitable trust created by will) in a 
racially discriminatory manner. Although the charitable 
device at the time of its creation was capable of being exe­
cuted in the exact manner provided by the will, by opera­
tion of law it is no longer capable of further execution 
in the exact manner provided for by the testator. The court 
should effectuate the general charitable purpose of the 
testator to establish and endow a public park by refusing 
to appoint private persons as trustees.

By amendment to the petition it was alleged: By the 
[fol. 137] will of A. 0. Bacon a trust was established for 
his heirs. The trust has been executed as to four of his 
seven heirs now living, A. 0. B. Sparks, Willis B. Sparks, 
Jr., Virginia Lamar Sparks, and M. Garten Sparks. _ The 
interests of three remaining heirs, Louise Curry Williams, 
Shirley Curry Cheatham, and Manley Lamar Curry, are 
still held under an executed trust by four trustees holding 
under the authority of the will, these trustees being Guyton 
Abney, J. D. Crump, T. I. Denmark, and Dr. W. G. Lee. 
These seven persons have an interest in the litigation since,



84

if the trust purpose expressed in the will with respect to 
the designation of persons who may use Baconsfield should 
fail, the property comprising Baconsfield, together with the 
property providing the upkeep of Baconsfield, will revert 
to the estate of A. 0. Bacon and be distributed to these 
heirs. The amendment prayed that the Sparks heirs be al­
lowed to intervene and that the trustees be allowed to 
assert the interests of the other heirs. It was also prayed 
that the Negro intervenors and other members of the Negro 
race resident in Macon be permanently enjoined from enter- 
[fol. 138] ing and using the facilities of Baconsfield. The 
Sparks heirs and the trustees of the other heirs of A. 0. 
Bacon filed an intervention praying that the relief sought 
by the original petitioners be granted, but that if such relief 
not be granted, the property revert to them.

The City of Macon filed an amendment to its answer, 
alleging that pursuant to resolution adopted by the Mayor 
and Council of the city at its regular meeting on February 
4, 1964, the city has resigned as trustee under the will of 
A. 0. Bacon. It prayed that the resignation be accepted by 
the court.

The Negro intervenors filed an amendment to their inter­
vention in which they asserted: The equal protection clause 
of the Fourteenth Amendment to the United States Con­
stitution prohibits the court from enjoining Negroes from 
the use of the park, and from accepting the resignation of 
the City of Macon as trustee and appointing new trustees 
for the purpose of enjoining (enforcing!) the racially dis­
criminatory provision in the will of A. 0. Bacon. Code 
§ 69-504 prescribes racial discrimination and is therefore 
[fol. 139] violative of the equal protection clause of the 
Fourteenth Amendment to the United States Constitution. 
Since the racially discriminatory provision in the will was 
dictated by that unconstitutional statute, enforcement of 
the racially discriminatory provision is constitutionally pro­
hibited. Code § 108-202, properly construed, requires that 
the racially discriminatory provision in the will be declared 
null and void. The intervenors prayed that the court with­
hold approval of the attempted resignation of the city as



85

trustee under the will, direct the city to continue to ad­
minister the park on a racially nondiseriminatory basis, 
and deny the injunction sought by the petitioners to exclude 
Negroes from the use of the park.

On March 10, 1964, the judge of the superior court 
entered an order and decree in the ease which adjudged as 
follows: (1) The intervenors named are proper parties in 
the case and are proper representatives of the class which 
their intervention states that they represent, the Negro 
citizens of Bibb County and the City of Macon. (2) The de­
fendants, Guyton G. Abney, J. D. Crump, T. I. Denmark, 
[fol. 140] and Dr. W. G. Lee, as successor trustees under 
the will of A. 0. Bacon, and intervenors A. 0. B. Sparks, 
Willis B. Sparks, Jr., Virginia Lamar Sparks and M. 
Garten Sparks are also proper parties. (3) The City of 
Macon having submitted its resignation as the trustee of the 
property known as Baeonsfield, the resignation is accepted 
by the court. (4) Hugh M. Comer, Lawton Miller, and B. L. 
Register are appointed as trustees to serve in lieu of the 
City of Macon. (5) The court retains jurisdiction for the 
purpose of appointing other trustees that may be necessary 
in the future. (6) It is unnecessary to pass upon the second­
ary contention of the intervenors Guyton G. Abney and 
others.

Reverend E. S. Evans and others in their writ of error 
to this court assign error on this order of the trial judge. 
Their contentions will appear from the opinion.

Donald L. Hollowell, William H. Alexander, Jack Green­
berg, James M. Nabrit, III, for plaintiff in error.

Jones, Sparks, Benton & Cork, Trammell F. Shi, contra.
[fol. 141] A l m a n d , Justice. Counsel for the plaintiffs in 
error (the Negro intervenors) assert that the decree of the 
judge of the superior court was “ patent enforcement of 
racial discrimination contrary to the equal protection clause 
of the Fourteenth Amendment” to the Federal Constitution. 
The decree did not enforce, or purport to enforce, any judg­
ment, ruling, or decree as related to the intervenors. After 
determining that all parties were properly before the court, 
the decree did two things: (1) Accepted the resignation of



the City of Macon as trustee of Baconsfield; and (2) ap­
pointed new trustees.

“ The law of charities is fully adopted in Georgia . . . ” 
Jones v. Habersham, 107 U.S. 174 (5) (2 SC 336, 27 LE 401). 
Under the law of this State any person may, by will, grant, 
gift, deed, or other instrument, give or devise property 
for any charitable purpose. Ga. L. 1937, p. 593 (Code Ann. 
§ 108-207). Any public convenience might be a proper sub­
ject for a charitable trust. Code § 108-203. A charity once 
established is always subject to supervision and direction 
by a court of equity to render effectual its purpose. Code 
'§ 108-204. It is the rule that a charitable trust shall never 
fail for the want of a trustee. Code § 108-302.

Whether the will of A. O. Bacon, establishing a trust 
[fol. 142] for the operation of Baconsfield, contemplated by 
the language, “ to the Mayor and Council of the City of 
Macon and to their successors” (italics ours), that the 
named trustee might resign, need not be determined. The 
City of Macon did resign, and the judge of the superior 
court was confronted with the commandment of Code § 108- 
302 that a trust shall never fail for the want of a trustee. 
Being empowered to appoint trustees when a vacancy occurs 
for any cause, Thompson v. Hale, 123 Ga. 305 (51 SE 383), 
Harris v. Brown, 124 Ga. 310 (2) (52 SE 610, 2 LRA (NS) 
828), Woodbery v. Atlas Realty Co., 148 Ga. 712 (98 SE 
472), Sparks v. Ridley, 150 Ga. 210 (3) (103 SE 425), the 
judge exercised such power and appointed successor trus­
tees.

The contention by counsel for the plaintiffs in error that 
Code § 69-504 required A. O. Bacon to limit the use of 
Baconsfield to the members of one race can not be sus­
tained. Code § 69-504, in providing for gifts limited to mem­
bers of a race, simply states that any person may “ devise, 
give, etc.” The law of Georgia does not by Code § 69-504, 
nor by any other statutory provision, require that any 
testator shall limit his beneficence to any particular race, 
class, color, or creed. Such limitation, however, standing 
alone, is not invalid, and this court has sustained a testa- 
[fol. 143] mentary charity naming trustees for establish­
ing and maintaining “ a home for indigent colored jjeople 60



87

years of age or older residing in Augusta, Georgia.” 
Strother v. Kennedy, 218 Ga. 180 (127 SE2d 19). A. 0. 
Bacon had the absolute right to give and bequeath property 
to a limited class.

Counsel for the plaintiffs in error assert that: “ As the 
City was unable to comply with the racially discriminatory 
direction of the trust, three alternatives were open to the 
lower court: (1) declare the racially discriminatory provi­
sion null and void; (2) remove the trustee (or accept its 
resignation) and apjjoint a non-governmental trustee; (3) 
declare failure of the trust.” They insist that the judge 
should have chosen the first alternative.

Counsel for plaintiffs in error assert that the court 
should have applied the provisions of Code § 108-202 that 
when a valid charitable bequest is incapable for some reason 
of exact execution in the exact manner provided by the 
testator a court of equity will carry it into effect in such 
way as nearly as possible to effectuate his intention. The 
answer to this contention is : the application of the ey-pres 
rule, as provided in this Code section, was not invoked 
[fol. 144] by the primary parties to this case, and even if it 
be conceded (which we do not concede, see Smith v. Man­
ning, 155 Ga. 209, 116 SE 813, and Fountain v. Bryan, 176 
Ga. 31, 166 SE 766) that the intervenors could raise such 
issue, the facts before the trial judge were wholly insufficient 
to invoke a ruling that the charitable bequest was or was not 
incapable for some reason of exact execution in the exact 
manner provided by the testator. There is no testimony in 
the record of any nature or character, that the board of 
managers provided by the will, can not operate the park 
pursuant to the terms and conditions of the will.

Counsel for the plaintiffs in error cite Pennsylvania v. 
Board of Directors of City Trusts of the City of Philadel­
phia, 353 U.S. 230 (77 SC 806, 1 LE2d 792). In the Penn­
sylvania case the United States Supreme Court pointed 
out that the board which operated Girard College was an 
agency of the State of Pennsylvania by legislative act, and 
that the refusal to admit Negroes to Girard College was 
therefore discrimination by the State. Upon the return of



88

the ease to the Supreme Court of Pennsylvania for further 
proceedings not inconsistent with the opinion, that court 
remanded the case to the Orphans’ Court for further pro- 
idol. 145] ceedings not inconsistent with the opinion of the 
Supreme Court of the United States. The Supreme Court 
of Pennsylvania, on the second appearance of the case (see 
Girard College Trusteeship, 391 Pa. 434, 138 A2d 844), 
stated that the Orphans’ Court construed the United States 
Supreme Court’s opinion to mean that the Board of City 
Trustees was constitutionally incapable of administering 
Girard College in accordance with the testamentary re­
quirements of the founder, and the Orphans’ Court entered 
a decree removing the Board as trustee of Girard College 
and substituting therefor thirteen private citizens, none 
of whom held any public office or otherwise exercised any 
governmental power under the Commonwealth of Pennsyl­
vania. The Supreme Court of Pennsylvania affirmed this 
action on review, and again sustained action denying ad­
mission to Girard College by the Negro applicants. Counsel 
for the defendants in error cite Girard College Trusteeship, 
391 Pa. 434, and strongly rely on this Pennsylvania case. 
(On review by the United States Supreme Court the mo­
tion to dismiss was granted, and treating the record as a 
petition for certiorari, certiorari was denied. Pennsylvania 
v. Board of Directors of City Trusts of Pennsylvania, 357 
U.S. 570 (78 SC 1383, 2 LE2d 1546). A  motion for rehear- 
[fol. 146] ing was denied. (358 U.S. 858.) In so far as the 
Girard College Trusteeship case is applicable on its facts 
to the present case, it supports the rulings we have made.

The record does not sustain the contentions of the plain­
tiffs in error, and the judge could not properly have gone 
beyond the judgment rendered. This judgment is not shown 
to be erroneous for any of the reasons urged by counsel 
for the plaintiffs in error.

Judgment affirmed. All the Justices concur.



89

[fol. 147]
I n the Supreme Court of the State of Georgia

E. S. E vans et al., 
v.

Charles E. Newton et al.

J udgment— September 28, 1964
This ease came before this court upon a writ of error 

from the Superior Court of Bibb County; and, after argu­
ment had, it is considered and adjudged that the judgment 
of the court below be affirmed. All the Justices concur.

[fol. 148]
I n  the Supreme Court of the State of Georgia 

Decided September 28,1964 
Docket No. 22534

R ev. E. S. E vans, L ouis H. W ynn , R ev. J. L. K ey, R ev. 
B ooker W . Chambers, W illiam R andall, and R ev. V an 
J. Malone, Plaintiffs-in-Error,

vs.
T he City of Macon ; A. 0 . B. Sparks, Jr., V irginia L amar 

Sparks, M. B arton Sparks, Heirs at Law of A. 0. 
Bacon; Guyton A dley, J. D. Crump, J. J. Denmark, 
Dr. W. G. Lee, Successor Trustees under the W ill of 
A. 0 . Bacon; Charles Newton, Mrs. T. J. Stewart, 
F rank M. W illingham, M rs. F rancis K, Hall, George 
P. Rankin, Jr., Mrs. F rederic W. W illiams, and Mrs. 
K enneth Dunwoody, Members of the Board of Man­
agers under Will of A. O. B acon; Hugh M. Comer, 
L awton Miller, and B. L. R egister, Successor Trustees 
in Lieu of The City of Macon, Defendants-in-Error.

No change. Denied. All the Justices concur.



90

M o tio n  for  R eh e arin g — Filed October 5, 1964

Comes now Rev. E. S. Evans, Louis H. Wynn, Rev. J. L. 
Key, Rev. Booker W. Chambers, William Randall, and Rev. 
Van J. Malone, plaintiffs-in-error, and within the time al­
lowed by law, file this their Motion for Rehearing in the 
above-stated case, and for grounds thereof, say:

1.

That plaintiffs-in-error believe that this Honorable Court 
has overlooked the following material fact in the record: 
Item 9th of the will of A. 0. Bacon provides, inter alia, 
that certain property should be left in trust to the “ Mayor 
and Council of the city of Macon, and to their successors” . 
The said item also provides that “ The Members of this 
Board [of Managers] shall first be selected and appointed 
by the Mayor and Council of the city of Macon, or by their 
[fol. 149] successors . . . ; and all vacancies on said Board 
shall be filled by appointments made by the Mayor and 
Council of the City of Macon . . . , upon nomination made by 
the Board of Managers and approved by the said Mayor 
and Council of the City of Macon or their successors.” 
Plaintiffs-in-error aver that the phrase “ their successors” 
as used supra in the relevant context makes it quite clear 
that the successors referred to are the persons occupying 
the positions of Mayor and councilman of the city of Macon 
and not persons who have no official position or office with 
the City of Macon. A reading of the will in its entirety 
makes it clear to plaintiffs-in-error that it was the testa­
tor’s intent that the Mayor and Council (or persons suc­
ceeding them in those positions) should remain as trustees 
under the will. Accordingly, the Bibb Superior Court did 
not effectuate the testator’s intent by allowing the City of 
Macon to resign and was in error in so doing.

2.

That while the language in Georgia Code Annotated 
Section 69-504 appears to be permissive, the testator was 
in fact required to limit his beneficence to members of a



91

particular race. This requirement was the results of the 
said Code section plus the customs which prevailed at the 
time the testator’s will was drawn. The said Code section 
cannot be read or properly understood unless done so with 
a realization that patterns of segregation which were fos­
tered and perpetuated by the State, existed at the time the 
will was drawn. The plaintiffs-in-error respectfully refer 
this court to Robinson v. Florida, 84 S. Ct. 1693 (1964). 
In Robinson, the State statute did not require restaurants 
to segregate Negroes and whites. Nevertheless, the Court 
held that Florida, as did Georgia in the instant case, be­
came involved to such a significant extent that the case 
must be held to reflect State policy requiring segregation 
contrary to the Fourteenth Amendment to the United States 
[fol. 150] Constitution. In reality, the use of iireeatory 
words in Section 69-504 does not mean that the testator had 
a choice in the instant ease anymore than the restaurants 
did in the Robinson case.

Wherefore, movants pray that a rehearing be granted in 
this case and that the judgment of the court below be re­
versed.

Donald L. Hollowell, William H. Alexander, 85914 
Hunter Street, N. W., Atlanta, Georgia 30314;

Jack Greenberg, James M. Nabritt III, 10 Columbus 
Circle, New York, New York 10019;

Attorneys for Plaintiffs-in-Error.

[fol. 151]
C er tific a te  of  P robable  C au se  for  R e h e a r in g

I, William H. Alexander, of counsel for plaintiffs-in- 
error in the foregoing case, do certify that, upon careful 
examination of the opinion of the Court in this case, I 
verily believe that the facts and the decision mentioned in 
the attached motion have been overlooked by the Court, 
which facts and decision are material, and, if considered 
would require a different judgment from that rendered.

I also certify that a copy of the foregoing motion for 
rehearing has been served upon opposing counsel of record,



92

Trammel F. Shi and Jones, Sparks, Benton and Cork, by 
placing a copy in the United States Mail, postage prepaid, 
addressed to said counsel at their address of record.

This 5th day of October, 1964.
William H. Alexander

Sworn to and subscribed before me this 5 day of Octo­
ber, 1964.

Mary E. Dobbs, Notary Public, Georgia State at Large. 
My Commission Expires June 22,1968.

[fol. 152] [File endorsement omitted]

[fol. 153]
I n  t h e  S u p r e m e  C o u rt  of  t h e  S ta te  of G eorgia 

22534

E. S. E v a n s  et al.,

v.
C h a r le s  E. N e w t o n  et al.

O rder  D e n y in g  M otion  fo r  R e h e a r in g — October 8 , 1964
Upon consideration of the motion for a rehearing filed in 

this case, it is ordered that it be hereby denied.

[fol. 154] Clerk’s Certificate to foregoing transcript 
(omitted in printing).



93

[fol. 155]
S uprem e  C oukt of th e  U nited  S tates 

No............., October Term, 1964

E. S. E vans, et al., Petitioners, 
vs.

C harles E. N ew to n , et al.

Order E xtending  T im e  to F ile P etition  for W rit  of 
Certiorari—December 22,1964

Upon Consideration of the application of counsel for 
petitioner (s),

It Is Ordered that the time for filing a petition for writ 
of certiorari in the above-entitled cause be, and the same 
is hereby, extended to and including March 5, 1965.

Potter Stewart, Associate Justice of the Supreme 
Court of the United States.

Dated this 22nd day of December, 1964.



[fol. 156]
S uprem e  C ourt of th e  U nited  S tates 

No. 959—October Term, 1964

94

E . S. E vans, et al., Petitioners,
v.

Charles E. N ew ton , et al.

Order A llow in g  Certiorari— April 26,1965
The petition herein for a writ of certiorari to the Su­

preme Court of the State of Georgia is granted.
And it is further ordered that the duly certified copy of 

the transcript of the proceedings below which accompanied 
the petition shall be treated as though filed in response to 
such w rit.