Gray v. Obear

• Decision Date: 31 January 1875
• Citation: 54 Ga. 231
• Parties: Edwin T. Gray, plaintiff in error. v. George S. Obear, executor,defendant in error.
• Court: Georgia Supreme Court

54 Ga. 231

Edwin T. Gray, plaintiff in error. v. George S. Obear, executor, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1875.)

[COPYRIGHT MATERIAL OMITTED] Trusts. Laws. Evidence. Practice in the Superior Court Witness. Equity. Charge of Court. Before Judge Hill Bibb Superior Court. April Term, 1874..

For the facts of this case, see the decision.

*R. F. Lyon; J. & J. C. Rutherford, for plaintiff in error.

Lanier & Anderson, Hill & Harris, for defendant.

WARNER, Chief Justice.

This was a bill filed by the complainant against the defendant as the executor of William Gray, deceased, calling upon him to account for and pay him the amount of his legacy specified in the testator's will. On the trial of the case, the jury, under the charge of the court, found a verdict for the defendant. The complainant made a motion for a new trial, on the several grounds set forth in the record, which was overruled by the court, and the complainant excepted.

1, 2, 3. The clause of the testator's will under which the legacy is claimed is in the following words: "I give and bequeath, at my death, to George S. Obear, in trust, for the use and benefit of my son, Edward T. Gray, the following negroes,, (naming them.) I also give to the said George S. Obear, in trust as aforesaid, one-fourth of all the money, bonds, stocks, land, and personal property of every discription, negroes excepted, of which I may die possessed, after deducting the bonds hereinafter given to the children of Benjamin Patterson Jenkins, deceased. I will and direct that the property so given to the said George S. Obear, in trust for my said son, Edwin T., shall be managed and controlled by said trustee for the use and benefit of my said son, who is to be restricted in his expenses to the income arising from said property. The said trustee shall have authority to sell or exchange any or all of said property and reinvest the proceeds thereof, if he shall deem it best for the interest of my said son; but said property shall not be liable for the debts or contracts of my said son, except when made and entered into by the written consent of my said trustee." The will was executed in July, 1861; the testator died in 1870. The complainant requested *the court to charge the jury "that the trust here set up by Obear was what the law defines to be an executed trust; was so at the time of its creation, and if not so originally, if the proof shows that Obear has received the property of Gray, rendering his interest certain, and has reduced it to possession or control, that then the trust became executed, and the title and the right of possession vested in Gray, the beneficiary, " which request to charge the court refused, but charged the contrary thereof, that the trust was executory, and not an executed trust; that testator had the legal right to create it, notwithstanding his son was suit juris; that it was a good trust and must stand; that the testator had the right to put suchterms and restrictions upon the property bequeathed to his son as he saw fit.

The main controlling question in this case is, whether the trust created by the testator's will was a legal, valid trust, according to its legal effect and operation under the law of this state, which would entitle the defendant to retain the property in his possession as trustee, and to refuse to account to the complainant as executor of the testator thereof? In a legal sense, uses and trusts mean exactly the same thing. That the statute of 27th of Henry the VIII., concerning uses and wills, commonly called the statute of uses, is of force here as a part of the law of this state, there can be no doubt. One of the evils that statute was intended to remedy was that the property of the cestui que use could not be reached by legal process for his debts. The statue therefore executed the use— that is, it conveyed the possession to the use, and transferred the use into possession, and thereby made the cestui que use complete owner of the property, as well at law as in equity. By the statute of this state, trust estates may be created for the benefit of any female, or minor, or person non compos mentis: Code, sec. 2306. In other words, the testator in this case could have created a trust estate in favor of his son, if he was a minor, during his minority, or if he had been non compos mentis, and the trust would have been a legal, valid, trust. But it is insisted that the act of 1863, which repealed that *portion of the 2287th section of the Code which declared "that trust estates cannot be created in any property for any male person of the sane mind, " was intended to change the law in relation to that class of persons. We are inclined to think that it was the intention of the legislature, in passing the act...