56 Ga. 168 | Ga. | 1876
1. This action was commenced in 1860. The statute of limitations being pleaded, the plaintiff sought to parry it by coverture of Mrs. Amos; and it was insisted that her ante-nuptial contract with her husband and her trustee, did not vest the legal title in the latter, so as to subject it to be acted upon by the statute during the time she was covert. The conveyance is a very singular and unusual one. Its terms are sufficiently indicated in the head-note. It will be seen that the trustee was interposed for several purposes; first, to hold off the marital rights of the husband; secondly, to give effect to remainders in favor of her issue, or in favor of other persons in case Mrs. Amos should die intestate and without issue; and thirdly, to execute such uses as she might, by will, direct and appoint. The anomalous feature of the instrument is, that while it declares a trust for her use during her life only, it gives her an absolute power of disposition by sale, and enables her to pass title by her own deed or bill of sale. This power is what is relied upon to clothe her with the legal title, and it seems to be supposed by plaintiffs’ counsel that the title passed into the trustee sufficiently to keep the husband’s marital rights from attaching, and then returned into Mrs. Amos free from those rights, and upon her death re-vested in the trustee in behalf of the remaindermen. This is a complex theory, and seems to us to be too curly; too much twisted to be good law. The better view of the case is, that the power in Mrs. Amos to sell and convey title should be construed as a simple power to change the investment, the specifics and the form of the trust estate, the proceeds being subject to the like trusts, or else that the mere existence of the power, however deep it might go, would not destroy or suspend the trust, and that nothing short of its actual exercise would have that effect. As there is an express limitation of Mrs. Amos’ equitable estate to the period of her natural life, with contingent remainders over, this case differs materially from that of Cook vs. Walker, 15 Georgia Reports, 457.
2. If the trustee was barred, it is the settled law of this state that the beneficiaries of the trust, for whom he held title, were barred also: 10 Georgia Reports, 358; 51 Ibid., 139.
3. -In regard to the evidence of adverse possession, etc., the court was requested to charge the jury, as laid down in 30 Georgia Reports, 619, that the plea of the statute must be supported by proof so conclusive as to exclude reasonable doubt. The court declined so to charge, but seems to have given what we think is the true meaning of the cases on the subject, namely, that it is only necessary for the proof to clearly satisfy the minds of the jury of the truth of the plea. In civil cases, as in 11 Georgia Reports, 160; 30 Ibid., 619; and 17 Ibid., 559, the exclusion of reasonable doubt means that and no more: Code, section 3749; and as “reasonable doubt” is a phrase more appropriate to criminal cases, its employment to instruct the jury in civil cases had best be avoided. There is certainly a difference in the strength of conviction required by the law in the two class of cases; and that being so, it is desirable not to confound in language what should be distinguished in thought.
Judgment affirmed.