Obear v. Gray

• Citation: 68 Ga. 182
• Parties: Obear, executor, et al. vs. Gray.
• Decision Date: 30 September 1881
• Court: Supreme Court of Georgia

68 Ga. 182

Obear, executor, et al. vs. Gray.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1881.

Practice in Supreme Court. Practice in Superior Court. Evidence. Jurors. Verdict. Before Judge SIMMONS. Bibb Superior Court. April Term, 1881.

To the report contained in the decision, it is only necessary to add, in connection with the third division thereof, that the question being whether Gray was capable of managing property or not, Hickman testified to his conduct-ing business and making money; but on cross-examination it appeared that he received his information from statements of Gray himself, and thereupon the testimony was excluded.

Lanier & Anderson; Hall & Son, for plaintiffs in error.

J. Rutherford; Whittle & Whittle; J. C. Rutherford, for defendant.

Crawford, Justice.

William Gray by his last will and testament gave George S. Obear one-fourth of all his personal and real estate in trust for his son, Edwin T. Gray, whom he believed to be wholly incompetent to take care of it. This property was to be managed and controlled by the trustee for the benefit of the cestui que trust, whose expenses were to be limited to the income from the property, and who was not permitted to bind his estate by any contract not assented to in writing by the trustee. The will was duly probated, and is of full force and effect in all its parts as a will.

The cestui que trust filed a bill against Obear_s the executor and trustee, calling upon him to account for and pay over to him the trust funds so set apart for his benefit by his father's will. Upon the trial of the case, the court below held that he was not entitled to recover the property, because it was an executory trust which the father had the legal right to create, that he might protect the property bequeathed to his son. Upon a review of that case by this court, it was held to be an executed trust, and that such an estate could not be created in property for the benefit of a male who was sui juris.

This decision of the supreme court was met by answer of the defendant in the court below, that the complainant was non compos mentis at the time of the execution of the will, and still remained in that condition.

Upon the second trial, the jury found for the defendant, but for errors committed on the trial, the verdict was set aside, and a new trial ordered. When the case came on for trial the last time, it was agreed by the parties that the question of whether the complainant was sui juris or not should be stripped of the question of waste and mismanagement, which was also charged against the trustee, and that that issue be tried by itself. It was so tried, and the verdict was that the cestui que trust was not sui juris when the will was executed, but that he was not then, at the time of the trial, so unsound or weak in mind, or so imbecile, as that he could not manage property in the ordinary affairs of life.

The defendant moved to set this verdict aside, because of errors committed on the trial, which motion was refused by the court, and that refusal brings the case up again.

1. The first question made before this court was a motion to dismiss, because the case had been prematurely brought.

It was insisted that the verdict and judgment in no view could have been a final termination of the suit. Enough has been stated to make clear the nature of this point. The case had been brought by the complainant in his own right, as one having a legal standing before the court. The defendant put in issue that very question, and had it been decided in his favor, there would have been no legal party complainant before the court. As to him, as a party sui juris, certainly the case would have been at an end; but as to the court's retaining it, that some one else might be authorized to represent the party who was not himself sui juris, is a matter not considered by the court below, and is therefore not before us. We deal with the case as it is made here. The motion to dismiss is therefore overruled.

2. There were several grounds set forth in the motion for a new trial which we now proceed to consider.

One of the errors alleged to have been committed bythe court was in submitting the second issue to the jury, which was, " Whether Edwin T. Gray is now so unsound, or so weak in his mind, or so imbecile, that he cannot manage his property as ordinary men manage property in the ordinary affairs of life, " instead of, " Has Edwin T. Gray, sine." the execution of his father\'s will, become so sound of mind as to be now capable of managing property as ordinary men manage their property?" Whilst we think the latter would have been a more appropriate form in which to have put the issue, still, as it was not presented to the judge in that way and refused by him, it was no error that he did not so submit it. This court has held, where issues are to be passed upon, that counsel, if not satisfied with such as are proposed, or if they desire that there should be others, have the right to suggest them, and have them submitted to the jury or refused; if, however, this be not done, then it is too late for them to complain.

Our judgment is, that in view of this effort on the part of the father to secure this property to the use and...