164 Ga. 71 | Ga. | 1927
(After stating the foregoing facts.) The controlling question in this case is, whether or not, under the proper construction of the deed executed by James B.' Silman, the administrator of the estate of James Wood, to Joseph M. Weatherly and John S. Weatherly as trustees, the material portions of which are set forth in the statement of facts, John S. Weatherly was trustee merely for his wife, the life-tenant, or whether he was trustee both for the life-tenant and the remaindermen. If the trust embraced both the life-estate and the remainder estate, then the plaintiffs were not entitled to recover, because the grantees under the deed of conveyance from W. A. Weatherly to Moss and Thomas and their successors in title were in open, notorious, and continued possession under, a claim of title of the land sued for for more than the statutory period necessary to the ripening of a good prescriptive title. McLain v. Rabon, 142 Ga. 163 (82 S. E. 544); Wingfield v. Virgin, 51 Ga. 139. In the Wingfield case it was said: “In Ladd & Wilson v. Jackson, 43 Ga. 288, this court held that the statute did not run against the minor children in that case, because the legal title to the land was vested in them. The distinction is this: when the legal title to the property is vested in a trustee who can sue for it, and fails to do so within the time prescribed by law, and his right of action is barred, the infant cestui que trusts, who have only an equitable interest in the property, will be also barred; but when the legal title to the property is vested in the infants, or cast upon them by operation of law, then the. statute does not run against them during their infancy.” It is unnecessary to cite other cases; the principle announced is well settled. But the statement of this principle brings out clearly what is said above, that the controlling, question is whether John S. Weatherly was trustee both for the life-tenant and the remaindermen; and that question seems to be settled by decisions of this court made iff the constructions of deeds of conveyance which do not, in the respect now under consideration, materially vary from the deed before us for construction. The language in part in the granting clause of the deed is as follows: “James B. Silman, administrator as aforesaid,-in consideration of the sum of,” etc., “has granted, . . and sold, and by these presents does grant, . . sell,” etc., “unto John S. Weatherly for the use, benefit, and advantage in trust for said Bhoda A. Weatherly
It follows from what we have said that a different construction of the deed in question here is required from that given it by the
Judgment reversed.