54 Ga. 231 | Ga. | 1875
This was a bill filed by the complainant against the defendant as the executor of William Gray, deceased, calling upon him to account for and pay to him the amount of his legacy specified in the testator’s will. On the trial of the case, the jury, under the charge of the court, found a verdict for the defendant. The complainant made a motion for a new trial, on the several grounds sSt forth in the record, which was overruled by the court, and the complainant excepted.
The' main controlling question in this case is, whether the trust created by the testator’s will was a legal, valid trust, according to its legal effect and operation under the law of this state, which would entitle the defendant to retain the property in his possession as trustee, and to refuse to account to the complainant as executor of the testator therefor ? In a legal sense, uses and trusts mean exactly the same thing. That the statute of 27th of Henry the VIII-, concerning uses and wills, commonly called the statute of uses, is of force'here as apart of the law of this state, there can be no doubt. One of the -evils that stalute was intended to remedy was that the property of the cestui que use could not be reached by legal process for his debts. The statute therefore executed the use — > that is, it conveyed the possession to the use, and transferred the use into possession, and thereby made the cestui que use complete owner of the property, as well at law as in equity. By the statute of this state, trust estates may be created for the benefit of any female, or minor, or person non compos mentis : Code, sec. 2306. In other words, the testator in this case could have created a trust estate in favor of his son, if he was a minor, during his minority, or if he had been non compos mentis, and the trust would have been a legal, valid, trust. But it is insisted that the act of 1863, which repealed that
Let the judgment of the court below be reversed.