| Ga. | Jan 15, 1872
1. It seems very plain from the evidence in this case, that the executor of old Mr. Perryman got possession of this land by virtue of his office as executor. His possession was the possession of the estate, and the administrator da bonis non cannot be met in an action of ejectment by a claim of title in the executor adverse to the estate. This is a familiar principle, and is fully sustained by the authorities.
2. It is also clear, from principle as well as authority, that a trustee who has accepted the trust, cannot set up title adversely to his cestui que trust. It would be contrary to public policy to permit a trustee thus to take advantage of his opportunities to learn the defects in the title of the beneficiaries; and by accepting the trust he has acknowledged that the title is not in himself. We do not think the cases read show
3. There may be some question, whether this legacy passed under the will at all. Was it not, if this deed be valid, an adeemed legacy? And can the executor be fairly said to claim adversely to the will, when the date of his claim is subsequent to the will ? Can he be fairly said to contradict the will, when by the very deed he sets up, he recognizes that at the date of the will the title was in the testator, under and from whom his own title is derived. Our judgment is put solely on the question of possession, and we express no opinion on the other question.
Judgment affirmed.