Phinizy v. Weatherly

Beck, P. J. (After stating the foregoing facts.) The controlling question in this case is, whether or not, under the proper construction of the deed executed by James B.' Silman, the administrator of the estate of James Wood, to Joseph M. Weatherly and John S. Weatherly as trustees, the material portions of which are set forth in the statement of facts, John S. Weatherly was trustee merely for his wife, the life-tenant, or whether he was trustee both for the life-tenant and the remaindermen. If the trust embraced both the life-estate and the remainder estate, then the plaintiffs were not entitled to recover, because the grantees under the deed of conveyance from W. A. Weatherly to Moss and Thomas and their successors in title were in open, notorious, and continued possession under, a claim of title of the land sued for for more than the statutory period necessary to the ripening of a good prescriptive title. McLain v. Rabon, 142 Ga. 163 (82 S. E. 544); Wingfield v. Virgin, 51 Ga. 139. In the Wingfield case it was said: “In Ladd & Wilson v. Jackson, 43 Ga. 288, this court held that the statute did not run against the minor children in that case, because the legal title to the land was vested in them. The distinction is this: when the legal title to the property is vested in a trustee who can sue for it, and fails to do so within the time prescribed by law, and his right of action is barred, the infant cestui que trusts, who have only an equitable interest in the property, will be also barred; but when the legal title to the property is vested in the infants, or cast upon them by operation of law, then the. statute does not run against them during their infancy.” It is unnecessary to cite other cases; the principle announced is well settled. But the statement of this principle brings out clearly what is said above, that the controlling, question is whether John S. Weatherly was trustee both for the life-tenant and the remaindermen; and that question seems to be settled by decisions of this court made iff the constructions of deeds of conveyance which do not, in the respect now under consideration, materially vary from the deed before us for construction. The language in part in the granting clause of the deed is as follows: “James B. Silman, administrator as aforesaid,-in consideration of the sum of,” etc., “has granted, . . and sold, and by these presents does grant, . . sell,” etc., “unto John S. Weatherly for the use, benefit, and advantage in trust for said Bhoda A. Weatherly [75] for life, for her separate use, and on her decease to such child or-children, or the representative of her child or children, the issue of the marriage of the said John S. and Rhoda A., as she may leave in life, . . an undivided half interest in and to a tract of land,” etc. And in the habendum clause is this language: “To have and to hold the above-described property . . to him, the said John S. Weatherly, in trust for said Rhoda A. Weatherly and her children as above specified, forever, each a share or interest alike in the above-described property, with all the members, rights, and appurtenances thereto belonging, in as full and ample a manner as the said tract of land was seized, possessed, and enjoyed by the said James Wood, deceased, in his lifetime.” In Seaboard Air-Line Railway v. Simmerville, 142 Ga. 317 (82 S. E. 890), the deed under construction conveyed certain lands to Oliver R. Simmerville “for the use'.and advantage in trust for said Mary Simmerville for life (exempt from marital rights of said William I. Simmerville or any future husband which the said Mary Simmerville may have), for her sole and separate use, and on her decease to such child or children, or representative of children, as she may leave in life, and the same to'be equally divided between said children or representatives of children [certain described realty]. To have and to hold the above-described property to him, the said Oliver R. Simmerville, in trust for the said Mary Simmerville and her children as above specified, forever, free from the debts, liabilities, obligations, or control of the present or any future husband of the said Mary Simmerville.” It was held in that case that the trust created by this deed was for the remainder estate only, that the remainder estate was a legal remainder, and, the estate in remainder being a legal one, that the trustee did not represent the remaindermen, and that possession of a part of the land conveyed by the trust deed could not ripen into a prescriptive title as against the remaindermen until after the lapse of the statutory period from the death of the life-tenant. That ruling was based upon the rulings in the cases of Smith v. McWhorter, 123 Ga. 287 (51 S. E. 474, 107 Am. St. R. 85), and Overstreet v. Sullivan, 113 Ga. 891 (39 S. E. 431). All the Justices of this court concurred in the judgment in the Simmerville case, supra, but four of the. Justices stated in their special concurrence that they concurred in the judgment because they were bound by one [76] or more former decisions of this court — that is, the Smith and Overstreet eases referred to above. But they added, in the conclusion of their special concurrence, that, “as an original proposition, it might be well doubted whether, under the rule in this State providing for the construction of a deed in its entirety so as to harmonize all parts of it if practicable, a conveyance which declares that a trustee shall have and hold the property in trust for a married woman and her children could be declared not to create any trust for the children.” Subsequently this doubt ripened into a conviction that the Smith and Overstreet eases should be reviewed and overruled; and in Watts v. Boothe, 148 Ga. 376 (96 S. E. 863), the rulings in the cases of Smith v. McWhorter, Overstreet v. Sullivan, and Seaboard Air-Line Ry. v. Simmerville were overruled in so far as they held that the trust in each case embraced only the life-estate and not the remainder. The decision in the case of Watts v. Boothe wiped out the rulings in those cases in so far as they held that the estate in remainder in each was a legal remainder and not comprehended in the trust. And the principle recognized in the Watts case has been subsequently applied and held to be the law. It was.followed in the case of Burton v. Patton, 162 Ga. 610 (134 S. E. 603), where it was held: “Where a testator devises certain described realty to a named person as trustee for A 'during her natural life, and after her death to her children then in life, and representatives of any children who may have died leaving children, the children of deceased child or children taking their father’s or mother’s share,’ the terms of the devise are broad enough to embrace the fee in the premises described; and this fee being carved up into an estate for life in favor of one beneficiary and remainders in behalf of the other beneficiaries, who are uncertain and unascertained, the will should be construed as clothing the trustee with full title, and the title as to the remainders should be considered as abiding in the named trustee 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.” It follows from what we have said that a different construction of the deed in question here is required from that given it by the [77] trial court, and consequently that the decision of the lower court must be reversed. Judgment reversed. All the Justices concur.