Gray v. Obear
| Decision Date | 31 August 1877 |
| Parties | Edwin T. Gray, plaintiff in error. v. George S. Obear, executor,defendant in error. |
| Court | Georgia Supreme Court |
Trusts. Minors. Insanity. Witness. Wills. Evidence. Before Judge Hill. Bibb Superior Court. October Adjourned Term, 1876.
Gray filed his bill against Obear as executor of William Gray, deceased, in which he alleged that said deceased, his *father, died in 1870, leaving a will, in which he bequeathed to said defendant, as trustee for complainant, one-fourth of his estate, real and personal; that said trust was an executed trust, he being of age and sui juris. He therefore prayed that said defendant might account to him for his interest in said estate; also, that said Obear might be relieved from said trust on account of mismanagement and fraudulent conduct, and a new trustee appointed.
The defendant answered that complainant was non compos mentis at the time of the execution of said will, and is still; that the trust was valid, and that he had not committed any waste, mismanagement, etc.
See this same case as reported in 54 Ga. Rep., 231, and 55 Ib., 138.
The evidence introduced was voluminous. The eccentricities and peculiarities of complainant from his infancy to the time of trial, were shown. The opinions of numerous witnesses were introduced as to his mental condition, varying from the belief that he was entirely imbecile, to confidence in his general ability to manage property. The preponderance of opinion indicated that he was of weak mind, but whether he was so entirely imbecile as not to be able to manage property, and in what this imbecility consisted, was left in some doubt. The court permitted defendant to prove by one William Holmes, that testator told him that some person in Texas had induced complainant to commit some criminal act, such as cattle stealing, or the like; that he was a poor, miserable boy, whom anybody could lead into trouble. To which complainant excepted.
The court permitted George S. Obear, the defendant, to testify in reference to the obligation given by him to testator for stocks and bonds, to the amount of $5,700, that he sold them in November, 1868, for $5,000; that since then the price has been lower, at least 25 per cent. To which complainant excepted.
The court permitted the introduction of the following *entry from the private book of the defendant, in which he testified that he kept his returns as executor and trustee, and which had been exhibited to the family of the testator:
To which complainant excepted.
The court permitted Mis. M. E. Ellis to testify as follows: Similar declarations and sayings of the testator to other witnesses were also shown. To all of which complainant excepted.
The jury returned the following verdict:
Two other previous verdicts were returned, which the court declined to receive, holding that they were insufficient to base a decree thereon. Subsequently to the last, complainant filed a petition, setting forth all three verdicts, and asking, in distinct counts, that a decree be entered in his favor upon each, setting forth the peculiar provisions of the decree which he claimed should be rendered. The court declined to accede to the prayer of the petition, and decreed in favor of defendant onthe last verdict. To all of which complainant excepted. *Exceptions were also taken by the complainant to various portions of the charge given, and by both com-plainant and defendant to numerous refusals to charge, all of which is omitted here as immaterial, in view of the decision.
Error was assigned upon the exceptions, as above stated.
R. F. Lyon; J. & J. C. Rutherford, for plaintiff in error.
Lanier & Anderson; Hill & Harris, for defendant.
1. When this case was before this court first, reported in 54 Ga., 231, it was held that the testator could not create a valid trust for his son, unless he was a minor or non compos mentis, and that if Edwin T. Gray was sound in mind, the trust being for his benefit alone, that the use executed the trust, and Gray was entitled to recover on a bill requiring his trustee to turn over the property to him. The case was again brought to this court on the propriety of allowing an amendment setting up that Gray was non compos mentis when the will was made, and was so still. This amendment was allowed.
The question, therefore, of the power of the testator to create a trust for Gray's benefit, if he was sound in mind, may be considered settled against the power by the judgment of a unanimous court in this case itself, and it must be considered res adjudicata. The corollary drawn from this premise, that the use executed the trust, and that Gray took an absolute estate when he became sound in mind, and could demand the delivery thereof and an account from his trustee, Obear, therefor, was also decided by a full bench in this case, in 54 Ga., 231. It might well be doubted whether this was the law of this case but for that judgment in the case. See 2nd Term, marg. p. 444 (Dun. & East, 2 vol., 179); 2 Rich. Eq., 52; Blackstone's Com., book 2, chap. 20, p. 336. For the act denying the power to create a trust for one of sound mind being repealed by the act of 14 *December, 1863 (acts of 264, p. 100), left the power as at common law, with a strong implication that the trust might be created where there was something to do as in this case, to preserve the corpus, collect the income, and pay only that over to the cestui que trust, and the authorities above cited seem to indicate that it might have been done at common law. But it is res adjudicata, and we are bound by the judgment rendered in 54 Ga., 231, and express no opinion upon it, other than to say that the judgment there rendered binds us.
It is important in this case, however, to define what is soundness of mind under the laws of Georgia; that is, such soundness of mind as would authorize the creation of a trust and the keeping it undisturbed by the cestui que trust.
2. The Code declares, in section 2306, that "trust estates may be created for the benefit of any female or minor, or person non compos mentis." There was formerly a negative provision in this section that they should not be created for a male person sui juris and of sound mind; but this was repealed by the act of 1864, cited above.
The question, then, becomes this: who is non compos mentis in the sense of section 23C6? Other sections of our Code throw great light upon this question, and if we can find anything in our own statutes shedding light thereon, it is the best light with which to look at this section and ascertain its meaning.
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Pantone v. Pantone, 16878
...and not for this court to pass upon the weight and credit to be given to the testimony. Potts v. House, 6 Ga. 324, 50 Am.Dec. 329; Gray v. Obear, 59 Ga. 675(3); Frizzell v. Reed, 77 Ga. 724(5); Hubbard v. Rutherford, 148 Ga. 238, 96 S.E. 327; Pennington v. Perry, 156 Ga. 103(9), 118 S.E. 71......
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...the mental condition, and it was for the jury to decide if his opinion was well founded. Code § 38-1708; Potts v. House, 6 Ga. 324; Gray v. Obear, 59 Ga. 675; Scott v. McKee, 105 Ga. 256, 31 S.E. 183; Dyar v. Dyar, 161 Ga. 615, 131 S.E. 535; McWilliam v. Pattillo, 173 Ga. 771, 161 S.E. 597.......
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