68 Ga. 182 | Ga. | 1881
William Gray by his last will and testament gave George S. Obear one-fourth of all his personal and real estate in trust for his son, Edwin T. Gray, whom he believed to be wholly incompetent to take care of it. This property was to be managed and controlled by the trustee for the benefit of the cestui que trust, whose expenses were to be limited to the income .from the property, and who was not permitted to bind his estate by any contract not assented to in writing by the trustee. The will was duly probated, and is of full force and effect in all its parts as a will.
The cestui que trust filed a bill against Obear, the executor and trustee, calling upon him to account for and pay over to him the trust funds so set apart for his benefit by his father’s will. Upon the trial of the case, the court below-held that he was not entitled to recover the property, because it was an executory trust which the father had the legal right to create, that he might protect the property bequeathed to his son. Upon a review of that case by this court, it was held to be an executed trust, and that such an estate could not be created in property for the benefit of a male who was sui juris.
This decision of the supreme court was met by answer of the defendant in the court below, that the complainant was non compos menti&at the time of the execution of the will, and still remained in that condition.
The defendant moved to set this verdict aside, because ' of errors committed on the trial, which motion was refused by the court, and that refusal brings the case up again.
It was insisted that the verdict and judgment in no view could have been a final termination of the-suit. Enough has been stated to make clear the nature of this point. The case had been brought by the complainant in his own right, as one having a legal standing before the court. The defendant put in issue that very question, and had it been decided in his favor, there would have been no legal party complainant before the court. As to him, as a party sui juris, certainly the case would have been at an end ; but as to the .court’s retaining it, that some one else might be authorized to represent the party who was not himself sui juris, is a matter not considered by the court below, and is therefore not before us. We deal with the case as it is made here. The motion to dlstniss is therefore overruled.
One of the errors alleged to have been committed by
Our judgment is, that in view Of this effort on the part of the father to secure this property to the use and enjoyment of his son through life, that before it is taken out of the hands of the trustee and placed in the control of the cestui que trust, against whose management the father was endeavoring to guard it, the reasons prompting him should be well ascertained to have passed away.
This trust should not be destroyed, and the will quoad hoc set aside, Upon any uncertain or doubtful grounds i hence, the issue should be well defined as to his soundhess of mind and capacity to manage his property, not temporarily but permanently.
According to the recorded judgment of this court in the case of Gholston vs. Gholston, which was a libel for divorce, and reported in 31 Ga., 625, it was held that a jury was improperly influenced by the sheriffs telling them that unless they speedily agreed upon a verdict, the judge would carry them to Elbert county, and that he was making preparations for that purpose.
The deliberations of a jury are not to be interfered with whilst they are considering the law and the testimony which alone must control their verdict. They are by no means to be influenced by the fear of a week’s confinement, to alarm them into an agreement. Such a suggestion, even by the very officer in whose custody they are placed, would be highly improper, and especially so in view of the fact that they are thus placed to prevent every outside influence by word, sign, or speech, from affecting unlawfully their finding.
Our judgment is, after a review of this whole case, that justice demands another trial, and a verdict returned free from the numerous doubts which environ this on all sides.
Judgment reversed.