115 Ga. 23 | Ga. | 1902
J. H. Freeman, ordinary of White county, brought suit, in the superior court of that county, for the use of James Thurmond and others, “ children of E. J. Thurmond and his wife Mary,” against S. L. Brown, administrator of E. J. Thurmond, deceased, and E. J. Houston and others, as sureties upon the bond of E. J. Thurmond, as administrator with the will annexed of John Glen, deceased. The suit was brought to recover the several amounts alleged to be due the respective usees of the plaintiff, as legatees under the will of John Glen. The petition alleged that E. J. Thurmond, as administrator with the will annexed of Glen, had received into his hands ample assets of the estate of such testator, over and above the amount necessary to pay the debts and the costs of administration, to pay the amounts due upon the legacies of the usees, and that he and Brown, the administrator upon his estate, had each failed and refused to pay such legacies. A copy of the will of Glen and a copy of the bond of E. J. Thurmond, as administrator with the will annexed of Glen’s estate, were attached to the petition as exhibits. In the will the testator disposed of his estate as follows: “ To E. J. Thurmond I will one thousand dollars to be divided equally between the children of E. J. Thurmond and_ his wife Mary, being nine in all, E. J. Thurmond one child’s part, and each child to draw one hundred dollars, with interest as it comes of age, from the date of my death. Also I will to Caroline Hix four hundred dollars for the use of her and her children.” The defendants demurred to the petition. The bill of exceptions recites that, “Hpon hearing argument on said demurrer and considering the same, the court decided to sustain the same and dismiss the plaintiff’s petition, and dictated his decision to the court stenographer.” Then follows the decision of the court, embodied in a written opinion, in which the court, in effect, held that as the testator
The will does not give separate legacies to each of the nine children, but it gives one entire legacy of one thousand dolíais to E. J. Thurmond, one hundred dollars of which he is to take for himself and the remaining nine hundred dollars of which be is to receive in trust for these children, and to pay to each child, upon such child arriving at the age of twenty-one years, one hundred dollars with interest-thereon from the testator’s death. No “ legacies ” were tobepaidbythe administratorto the plaintiff’s usees, “ upon their obtaining their majority,” but one legacy of one thousand dollars wasto be paid by the administrator toE. J. Thurmond, nine hundred dollars of which he was to receive as trustee for his children, and he, not the administrator, was to pay the so-called “legacies” to his children as they, respectively, attained the age of twenty-one years. It requires but little argument to show thatthisis the proper construction of the
One appointed as trustee may so act, however, in reference to the ■subject-matter of the trust as that the law will conclusively imply ■an acceptance by him of the trust. And after acceptance, no disclaimer will remove the character of trustee. Civil Code, § 3190;
In Trill on Trustees, 215, it is said: “Where the same person is appointed both executor and trustee, it is difficult, though sometimes of importance, to determine when the office of executor has ceased, and that of trustee has commenced. The rule appears to be, that if a part of the assets have been clearly set apart and appropriated by the executor to answer a particular trust, he will be considered to hold the fund as trustee for those trusts, and no longer as a mere executor. In the absence of any such conclusive
Judgment affirmed.