138 Ga. 757 | Ga. | 1912
Hnder this construction there were, among others, contingencies by which Martha Jones might have an equitable estate for life only, or an absolute estate. As she.survived William, she acquired an equitable life-estate, but as children, issue of the marriage, sur
(a) The majority of the court are further of this opinion: If a trustee of an executory trust held the entire title, covering both the uses for life and those in contingent remainder, and if prescription ripened against him, it would be good against all the beneficiaries represented by him. If it began to ripen in his lifetime, under the ruling in Cushman v. Coleman, supra, his death alone would not suspend its operation, unless for some reason expressly declared by law. But that decision did not change the general rule, that if there is no person in life against whom prescription can commence to run, it can not be begun and ripened against a dead trustee so as to affect a beneficiary in contingent remainder, with no right of entry, possession, or recovery of possession during the continuance of the life-estate; and the provision of Civil •Code § 4175, as to prescription against an estate of a decedent on which no representation is had in five years, does not apply to the death of a trustee without a successor in.the trust.
(b) Mr. Justice Hill and the writer do not concur in all that is expressed in subparagraph (a) above. In our opinion, prescription operates against legal title. When legal title in fee becomes vested in a trustee by a valid contract, it does not after-wards become divested by the death of the trustee, but such title remains as in any unrepresented estate. Civil Code § 4175 applies to such cases. Where by application of that provision of the code a prescriptive title would 'arise, it would not fail merely be
Under the facts appearing in the record, the judge erred in rendering judgment for the defendants..
Judgment reversed.