Mounger v. Duke

Trippe, Judge. 1. Section 2339 of the Code enacts that an acceptance of a trust may be by acts as well as words, and that after acceptance no disclaimer will remove the character of trustee. 2. Although the words of a deed or will were not such as to constitute a separate estate in the wife, and under such words as were used, the husband could, before the act of1866, have claimed title by virtue of his marital right, yet if he himself accepts the position of trustee, receives the property as trustee, treats it as such, acknowledging it tobe trust property during his life, neither he, or his representative after his death, can deny the character in which the property was received by the husband. The principle involved in this point arose and was decided m the case of Brown vs. Kimbrough et al., 51 Georgia, 35. The reasons are given in that case showing that an acceptance of a trust, or the creation of one, by the husband, operates upon the construction to be given to the conveyance, and words, which would not, where a third person is the grantor or trustee, -create a separate estate in the wife’s will, do so where the husband is the grantor, or does [282] liimself accept the office of trustee, under a conveyance made by another. That decision controls this point in this case, and we think there was error in sustaining the motion to dismiss on this ground. 3. We think the testimony as to the husband’s having, as trustee, received money from a former trustee of his wife, and of his investment of the same, was sufficient to entitle the complainant to a hearing before the jury. What the jury should have done we do not say. But they should be allowed to determine the facts under the principles which should control the case, to be given them in charge by the court. Judgment reversed.