Cushman v. Coleman

• Decision Date: 27 January 1894
• Citation: 19 S.E. 46,92 Ga. 772
• Parties: CUSHMAN et al. v. COLEMAN.
• Court: Georgia Supreme Court

19 S.E. 46

92 Ga. 772

CUSHMAN et al. v. COLEMAN.

Supreme Court of Georgia

January 27, 1894

Syllabus by the Court.

1. Where the terms of a conveyance by deed to a trustee are large enough to embrace the fee in the premises described and this fee is carved up into an estate for life in favor of one beneficiary and a remainder in behalf of other beneficiaries, who are uncertain and unascertained, the instrument should be construed as clothing the trustee with full title, and the title as to the remainder should be considered as abiding in him so long, at least, as the identical persons who are to take and enjoy it are not ascertainable. Up to that time the trust is executory, and the remainder is an equitable, not a legal, estate. The trustee represents it, and, should he become barred by prescription, the beneficiaries will be barred also. That a trust in remainder will become executed on the happening of a certain event, such as the death of a tenant for life, does not involve, as a presupposition, that the trustee has no title to the remainder, but the contrary; for the passing of the legal title out of the trustee into the beneficiaries is what executes and terminates the trust.

2. A deed conveying to a named trustee, "and his heirs forever in fee simple, in trust for the sole and separate use of" a married woman "during her natural life, and at her death in trust to be equally divided between such children of her and her present husband as may be in life at other death, and the representatives of any one or more of said children. If any, as may have died before" her decease, passed the fee in the premises described to the trustee; and the persons who were to take in remainder being uncertain, and it not being ascertainable who they would be until the death of the life tenant, the remainder was contingent, and could not become vested until her death.

3. If under the terms of section 2688 of the Code, the death of the trustee would suspend the running of the statute of prescription, provided his successor was appointed within five years, it would be incumbent on those claiming the benefit of such suspension to show such appointment.

4. It is discretionary with the presiding judge whether he will reopen a case for the reception of more testimony after the plaintiff has closed and a motion for a nonsuit has been made and argued.

5. While writings produced on notice and inspected will thereby become evidence for the producing party without further proof, on all trials of the same case, as ruled in Wooten v. Nall, 18 Ga. 609, this will not suffice on the trial of a subsequent case, though brought for the same cause of action.

Error from superior court, Bibb county; J. H. Guerry, Judge.

Action by A. F. Cushman and others against Aurelia A. Coleman to recover real estate. From a judgment of nonsuit, plaintiffs bring error. Affirmed.

H. F Strohecker and J. H. Martin, for plaintiffs in error.

Lanier, Anderson & Anderson, for defendant in error.

LUMPKIN J.

Mrs. Sarah C. Cushman and others brought an action against Mrs. Aurelia A. Coleman to recover certain premises in the city of Macon. Mrs. Cushman died after the action was brought, and her heirs were made parties plaintiff in her stead. After the plaintiffs closed their evidence, a nonsuit was granted, on the ground that the evidence did not warrant a recovery in their favor, a perfect prescriptive title in the defendant having been thereby shown. The bill of exceptions assigns as erroneous certain rulings made during the trial, and also the granting of the nonsuit. It appears from the brief of evidence that from 1836 to May, 1842, Jerry Cowles was in possession of the premises in dispute. On the first Tuesday in that month, the sheriff, of Bibb county, after levy and advertisement, sold the premises as the property of Jerry Cowles, under certain fi. fas. against him. Seaton Grantland became the purchaser, and rented the premises to E. A. Nisbet, as trustee for Mrs. Sarah C. Cowles, until June 6, 1845, at which time Grantland conveyed the property to Nisbet, as trustee, by a deed from which the following is an extract: "To have and to hold all of said bargained premises, together with all and singular the improvements, rights, members, and appurtenances to the same in any wise appertaining, to him, the said Eugenius A. Nisbet, and his heirs forever, in fee simple, in trust for the sole and separate use of Mrs. Sarah C. Cowles, wife of said Jerry Cowles, during her natural life, and, at her death, in trust, to be equally divided between such children of her, said Sarah C. Cowles, and her present husband, Jerry Cowles, as may be in life at her death, and the representatives of any one or more of said children, if any, as may have died before the decease of her, the said Sarah C. Cowles; and the title to the said bargained premises, for the uses and trusts hereinbefore specified, I do hereby warrant and defend unto him, said Eugenius A. Nisbet, and his heirs forever, against the title and claim of myself, my heirs, executors, and administrators." It does not appear that Nisbet, as trustee, ever conveyed the property to any person; but the evidence shows that one Bond took possession of it in 1847, and occupied it openly, continuously, adversely, etc., until his death, in the year 1859, and that his possession was succeeded by that of others who held in like manner, down to and including Mrs. Coleman, the present occupant. All of these parties held and occupied the property under a claim of right. Nisbet died in 1871, and Mrs. Cowles died January 10, 1883, leaving only one child living, who was Mrs. Cushman. The plaintiffs below comprise all the descendants of the children of Sarah C. and Jerry Cowles.

1, 2. We think that under the deed from Grantland to Nisbet trustee, the fee passed to the latter. Certainly, no title was left in the grantor, and the terms of the deed are undoubtedly broad enough to embrace the entire fee in the premises. This fee is carved up into a life estate for the benefit of Mrs. Cowles, with remainder over to such children of herself and of her then husband as might be in life at her death, and the representatives of any one or more of such children as might die before her decease. By its express terms, the deed makes Nisbet trustee, not only of the life tenant, but of the remainder-men; the phrase, "and, at her death, in trust, to be equally divided," etc., leaving this unequivocal. Undoubtedly, when the deed was executed, it was uncertain who the remainder-men would be, nor was it possible to ascertain who they would be until the death of Mrs. Cowles; and, therefore, we think the remainder was contingent. We have already seen that full...