123 Ga. 287 | Ga. | 1905
(After stating the facts,) 1. The rights of the parties in the present litigation very largely, if not entirely, depend on the construction of the deed from Sarah Finch to John F. Smith, trustee, executed on the 2d day of September, 1869. A copy of this deed appears in the statement of facts. At the
The cases of Thomas v. Crawford, 57 Ga. 211, and Jennings v. Coleman, 59 Ga. 718, are distinguishable from the case at bar. In both cases the issue presented for determination arose upon the levy of a fi. fa. upon the interest of the tenant for life, and a claim by the trustee. In the first ease the bequest of the property was to the trustee, who was to pay over the rents, issues, and profits annually to the person who it was contended owned a life-estate. By the will the' corpus of the estate was expressly devised to the trustee; he was to have possession of the land, was to manage it and pay the income annually to Howard, and upon Howard’s death the trustee was to deliver possession to those entitled in remainder. The phraseology of the will clearly indicated that the testator intended that the trustee should represent the whole estate during the life of Mr. Howard, and that the trust was to be executory so long as he lived. In the latter case the property conveyed by the deed before the court was subjected to the same trusts, uses, and conditions as were contained in the will of the father-in-law of the grantor; and it was held that the deed, interpreted' and construed with the will, created an executory trust. This case is controlled by its
2. The estate in remainder being a legal estate, the trustee did not represent the remaindermen, and the judge of the superior court had no jurisdiction in chambers, on the application of the trustee, to authorize the sale of the interest of the remainder-men. Milledge v. Bryan, 49 Ga. 397; Knapp v. Harris, 60 Ga. 398; Rogers v. Pace, 75 Ga. 436; Pughsley v. Pughsley, Id. 95; Taylor v. Kemp, 86 Ga. 181; Fleming v. Hughes, 99 Ga. 444. The order of sale being without authority of law, the sale thereunder was necessarily void.
3. This suit was instituted within two years of the death of Mrs. Smith, the life-tenant. As the trustee did not represent the remaindermen, their right of action did not accrue until the death of the life-tenant; and the possession of the defendants-was not adverse to the plaintiffs until they had their cause of action. Inquire v. Lee, 121 Ga. 634.
Inasmuch as the trial judge held contrary to some of the principles of law herein enunciated, a new trial is ordered.
Judgment reversed.