73 Ga. 215 | Ga. | 1884
The plaintiffs in these suits are the children of Caroline C. Cook, who was the daughter of Silas Mosely. They claim as remaindermen, in virtue of certain bequests, as they allege, to their mother for life, contained in the 13th and 26th items of the will of Pilas Mosely. The 13th item of the will, as follows:
“I will and bequeath to Caroline O. Cook, my daughter, twenty-five hundred dollars, with the following reductions, viz.: one lot of land in the eleventh district of the county” (Henry) “and state aforesaid, known by (91) ninety-one, containing two hundred and two and a half acres, more or less, valued at five hundred dollars; also a*217 negro girl named Nancy, valued at four hundred dollars; also, reduction of notes and accounts that I hold against John H. Oook, her husband; said property and money to be free from the disposition of her husband, John H. Cook, and to be for her own separate benefit, and at her death to go to her children.”
By the other item, the testator appoints his executors trustees to hold in trust for him and in his name the property bequeathed to his daughters, including Mrs. Cook, “ to hold the same in trust for them and their bodily heirs.” The lot of land mentioned in the thirteenth item is that now in controversy. It was shown that the plaintiffs were the children of Mrs. Cook, living at her death. The case was submitted to the presiding judge by consent of both parties, to be determined by him both as to the matters of law and fact involved. He found for the plaintiffs, and the defendants excepted. Three questions are made here:
(1.) That by the terms of this will no life estate is vested in the mother of plaintiffs ; that an estate tail is created thereby, which, under the law, vests an absolute estate in Mrs. Cook, the life tenant.
(2.) That the land in question was advanced as a provision by the testator, Silas Mosely, in his lifetime to his daughter, that title to the same, by reason of his marital right vested in her husband, under whom defendants claim; that the will does not convey, or attempt to convey, title to advancements made by the testator to his daughter, but only requires that they be accounted for out of the legacy given to her; that the pecuniary legacy of $2,500 to Mrs. Cook is a legacy upon condition that these advancements be accounted for; and that, even were the expressed intention of the testator otherwise, these advancements could be recalled and disposed of by the will only with the consent of the party to whom they were made.
(3.) That the defendants were in the peaceable, continuous, open, exclusive, notorious and adverse possession of the land under written evidence of title for more than seven years previous to the commencement of plaintiff’s
If any one thing is clear from the mass of confusion created by this will, it is the intention of its maker
From aught that appears to the contrary, there is still in being a trustee, who holds this estate in remainder; the. title to it is in him and not in the remaindermenThis being the case, these actions should have been brought by him, and if a prescriptive title would have availed to defeat an action to which he was a party, it would have been equally available against them. It is conceded that where one, having a life estate unincumr bered with a trust, or incumbered by a trust that does not extend beyond the tenancy for life, sells and conveys the fee, prescription does not begin to run against the remaindermen until the termination of the life estate, for in neither case have they a right of entry until the end of the term. See dissenting opinion of Walker, J., in King vs. Leeves, 36 Ga., 206, and the opinions of Bleckley and Jackson, J. J., in Sanford vs. Sanford, 55 Ga., 527,
While the rule, as established in these cases, was not questioned, it was insisted that the fact of title to the remainder being held in trust for them did not vary its application, and the case of the City Council of Augusta vs. Radcliffe et al., 66 Ga., 469, was relied on in support of the position. That case, while distinctly recognizing the rule that plaintiffs must have both the title and the right of entry or possession before they could bring the action, or before prescription would attach, yet, under its peculiar circumstances, held that the suit was good against that defence. There the defendant claimed title under the trust, and that its conveyance was a good execution of the power to sell as conferred by the deed, which claim was not allowed by the court; besides, its title was derived directly from the trustee as such, and not from one holding adversely to him and it was charged with full notice of the plaintiff’s title. The defendants in these cases do not claim under the instrument creating this trust, -nor do they derive title from the trustee. It is true their deed is from the same person who was acting as trustee, but it was from him as an individual, and not as a trustee; he did not deal with them in the latter character. It is not shown that they knew of the existence of the trust, nor is there in the evidence any fact or circumstance from which such knowledge could be implied. On the oilier hand, there is at least one prominent fact, that was quite notorious in the neighborhood, namely, the unbroken and continuous possession of the land by the feoffer of the defendants, both before and after the testator’s death, that would lead to -an opposite conclusion.
In an early case decided by this court, Paschal vs.
Judgment reversed.