Grimsley v. Grimsley

79 Ga. 397 | Ga. | 1888

Blandford, Justice.

It is manifest, from the facts in the record, that the plaintiffs, the children of John J. Grimsley, could not recover more than an undivided half-interest in lots 360 and 369. But they did recover (he whole of lot 359 and an undivided lialf-interesfc in 360. The executor made to John J. Grimsley, as testamentary guardian, a deed to an undivided half interest in 360 and 359. He made also to himself, as testamentary guardian of Hamilton H. Grimsley, a similar deed to an undivided half-interest in both these lots; and Hamilton H. conveyed an undivided half-interest in lot 359 to John J. Grimsley, as testamentary guardian, for these children. Thus the plaintiffs became entitled, apparently, to the whole of lot 359, by virtue of the executor’s deed to an undivided half interest therein, and by virtue of the deed of Hamilton H., who had become of age, to the other undivided half-interest. John J., as testamentary guardian of these children, conveyed to Hamilton H. an undivided half-interest in 360 ; and Hamilton H. thus became the owner of 360, which was afterwards mortgaged, and, under a mortgage execution, sold, by the sheriff to Hutchins. Under the facts of this case, we cannot see how it is possible that these plaintiffs could recover the whole of lot 359, and an undivided half-interest in 360. That was, clearly too much.

In the will of J. W. Grim si ey, he appointed his son, John J., testamentary guardian for the latter’s children. We do not think he could do that. A father may appoint a testamentary guardian for his own children, but cannot appoint one for the children of anybody else. We will give effect to that part of the will, however, to this extent: We hold that, by this appointment as testamentary guardian, John J. Grirnsley became trustee for these children, and held the property, not as guardian, but as trustee.

We do not think that the statute of limitations could avail the plaintiffs in error as to lot 359; for the reason that when John J. sold this land, he took the money and misapplied it; and those parties who purchased it knew of his misapplication of this fund, and assisted in it, because they paid it to his individual creditors, and they cannot take anything by their own wrong. They got no title to this land.

The judgment of the court below in refusing a new trial is reversed, with directions that the plaintiffs be required to write off from the judgment the undivided half-interest in lot 360, and the mesne profils recovered in this case.

Judgment reversed, with directions.