Seaboard Air-Line Railway v. Simmerville, 142 Ga. 317

142 Ga. 317 | Ga. | 1914

Lead Opinion

Beck, J.

(After stating the foregoing facts.)

The controlling question in this case relates to the character of the trust created by the deed of Israel P. Davis to Oliver R. Simmerville; that is, was the trust created by this deed for the life-estate only, or was the trustee vested with the legal title in fee? .The material part of the deed is as follows: “This indenture made and entered into this the eighteenth day of January, in the year of our Lord one thousand eight hundred and sixty-one, between Israel P. Davis, of said State and County, of the first part, and Oliver R. Simmerville, son of William I. and Mary Simmer-ville, of the same place, witnesseth: that for and in consideration of the natural love and affection which he, the said Israel P. Davis, has and bears to his daughter Mary Simmerville, wife of said William I. Simmerville, and for and in consideration of the sum of five dollars cash in hand paid by the said Oliver E. Simmerville (at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged), the said Israel P. Davis has bargained, sold, granted, and conveyed, and by these presents doth bargain, sell, grant, and convey unto the said Oliver E. Simmerville for the use and advantage in trust for said Mary Simmerville for life (exempt from marital rights of said William I. Simmerville or any future husband which the said Mary Simmerville may have), for her sole and separate use, and on her decease to such child or children, or representative of children, as she may leave in life, and the same to be equally divided between said children or representative of children, to wit: [describing the property]. . . To have and to hold the above-described property to him, the said Oliver E. Simmerville, in trust for the said Mary Simmerville and her children as above specified, forever free from the debts, liabilities, obligations, or control of the present or any future husband of the said Mary Simmerville.”

We are of the opinion that under the ruling made in the case of Smith v. McWhorter, 123 Ga. 287 (51 S. E. 474, 107 Am. St. R. 85), which follows the ruling made in Overstreet v. Sullivan, 113 Ga. 891 (39 S. E. 431), the remainder created by this deed was a legal remainder, and that the trustee named was only trustee for the life-estate. The construction of a deed substantially identical with the one involved in the instant case, relatively to the question here involved, was fully discussed in the case of Smith v. McWhorter, supra, and it would not be profitable to further discuss it here. Inasmuch as the remainder created by the deed of Israel P. Davis was a legal remainder, the trustee did not represent the remaindermen, the plaintiffs in this suit, and they were unrepresented until the death of their mother, the life-tenant, in 1911. Consequently no prescriptive title to the land in question could have ripened against them before this suit was brought.

This ruling is controlling upon the main question in the case, as is recognized in the brief of counsel for plaintiff in error, and leaves open merely the question as to whether the amount found by the jury for the plaintiffs was authorized by the evidence. After a careful examination of the evidence, it can not be said that the finding as to the amount which the plaintiffs are entitled to recover was without evidence to support it; and the verdict, having received the approval of the trial judge, will not be disturbed here.

Judgment affirmed.

All the Justices concur.

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Concurrence Opinion

Fish, C. J., and Lumpkin, Atkinson, and Hill, JJ.,

concurring specially. We concur in the judgment in this ca'se, because we feel bound by one or more former decisions of this court. The decision in Smith v. McWhorter, 123 Ga. 287, was rendered by five Justices, and therefore would not require the unanimous consent of the court to be overruled. But in the case of Overstreet v. Sullivan, 113 Ga. 891 (decided by six Justices), this court construed a deed very similar to the one now in question. In the published opinion the granting clause alone is quoted, and no reference is made to the habendum and tenendum clauses. But a reference to the original record shows that the deed then under consideration had substantially the same habendum and tenendum clauses as the one now before us. We can not now take up and discuss the various cases which have been decided by this court, construing deeds more or less similar to the one before us. But, as an original proposition, it might well be doubted whether, under the rule in this State providing for the construction of a deed in its entirety so as to harmonize all parts of it if practicable, a conveyance which declares that a trustee shall have and hold the property in trust for a married woman and her children could be declared not to create any trust for the children.