Savannah morning news. [volume] (Savannah) 1868-1887, 1884-07-03
THE POSSESSION OF ESTATES.
Judge Adams Opinion in the Raymond
Wetter Case-Decisions on Important
Legal Questions.

In the trial OF the Raymond Wetter
case which was concluded in the Superior
Court on Tuesday, Judge Adams, in his
charge to the jury, determined number
Of interesting legal questions. state
ment Of the case with the verdict of the
jury appeared in the MORNING NEWS
Tuesday. The charge was as follows:
Raymond vs.. Wetter ct al. Ejectment In
the Superior Court Of Chatham County.
CHARGE OF THE corRT.
Gentlemen Of the Jury: Because Of the great
Importance Of the questions involved, and be-
cause Of the tendency of other snits which
viii be controlled by the adjudication Of this.
the Court has reduced its charge to writing.
ror these reasons likewise, the Court designs
| That TINS charge shall embrace its opinion and
| ruling with reference to each of the several
| legal propositions that have been argued.
The title claimed by the plaintiff rests upon
the deed OF Augustus p. Wetter to Erastus 4.
/ Marcy, executed Oct. !, 1869, and the deed
/ Of said Marcy to plaintiff, executed Dec.
/ "A, 1863. and upon an alleged adverse pos
| session Of the land for seven years or more
under said deeds, as color Of title.
THESE defendants are the two living
Wetter children. the administrator
administrator Of Augustus p. Wetter, the
\ father, who died subsequently to the decease
/ OF said two children and inherited, with the
! surviving children, their interests. The title
to this property was originally in Mrs. Mar
garet Ielfair and duly passed to said Angus
/ tus Z. Wetter as trustee for his wife during
/ her life, with remainder to the children. Mrs.
| Wetter died July q, 1866, the four children
/ being then in life and minors.
! 1t IS cOntended by the defendants that upon
/ the death OF Mrs. Wetter the trust became
/ executed and the legal estate vested in the
children. If this be true, then the statute OF
| limitations did not run during the minority Of
| the children, and these defendants have now
the title to this property. But if. on the other
! III "a
/ death of Mrs. Wetter, if the legal title re-
manned in the trustee during the minority of
| the children, then the statute unless sus-
/ pended for reasons hereafter to be nOticed)
! did run against the trustee and against the
/ interests of the children represented
/ by him, and the plaintiff has ac-
/ CURED a good prescriptive title to
4 this property, provided she and those under
/ whom she claims have had adverse possession
i FOR seven wears or more. 81 Ca, l39, Wing
/ field vs.. Virgin; 90 Ca, 332, Merritt VS. Mer-
/ rift.
Here we encounter the most perplexing
| question In this case. We do not concur in
1 the view that this question has been adjudi-
! Gated IN the case OF Wetter, trustee. VS..
| Walker-62 Ca, l42. We do, however, think
that the principle is settled by the decision of
| the Supreme Court in the case of Askew,
1 executor, vs. PattersOn-53 Ca, 20S. But for
! this decision we should hold, with the defend
/ ants, that upon the death of Mrs. Wetter this
1 trust became executed, that the legal estate
was then cast upon these children, and that
| the statute did not run during their minority.
| This decision, however, c0nstrains us to hold
otherwise. In the case of Askew vs.. Patter-
/ son the trust decd was executed prior to the
/ adoption Of the Code, but the life
tenant died after its adoption, leav-
| ing the remainder-men minors. Such
are the facts of the case at bar. In the case
| OF Askew vs.. Patterson. the decision in Mil
/ ledge VS. Bryan (49 Ca. 397) (which otherwise
| zee should regard as controlling this question:
/ is made to rest upon the fact that the life ten
/ ant died before the adoption of the Code, and
| the law IS declared to be since the adoption of
| the Code, that, in case like the one at bar,
upon the death of the life tenant the trust does
| not become executed, but ''tte trust continues
/ so long as the remainder-men under the trust
deed are incapable of managing their prop
| erty in their own right" The court plants
! its decision upon that provision of the Code
/ which declares that a trust estate may be
! created for the benefit of minor, and holds
| that as long as there are minors ''there is
| s0nethin0 for the trustee to dO'' "tO protect
4 the property during their minority" This is
not O6iter. Certainly we have no right so to
| assume. 1t is the decision of the court. as de-
| livered by the Chief Justice, with reference
to a vital point in the case.
All the authorities agree that where some
| thing remains to be done by the trustee the
trust is not determined, but is executory, and
the legal title remains in the trustee. Here
| our Supreme Court rule, that during the
minority of remainder-me something re-
mains to be done by the trustee-that some
thing being to protect and to hold this trust
| estate which the Code declares may be
| created for the benefit of a minor. So section
23l4 of the Cole declares: "In an executed
| trust for the benefit of a person capable of
| taking and managing property in his own
right the legal title is merged Immediately
! into the equitable interest, and the perfect
title vests in the beneficiary according to the
| terms and limitations of the trust" But a
minor is not capable of taking and managing
property in his own right" He cannot dis
| pose of it. lie cannot make any contract with
| reference to it; and therefore he is not such a
beneficiary upon whom, under the Code, the
| legal estate along with the equitable
| interest is cast. Hence the decision of the
| Supreme Court that the Code has given us
| new rule, to be applied in all cases where the
| life tenant dies and the rights of minor re-
| mander- men accrue after its adoption. with
| out regard to the time of the execution Of the
| trust deed. In such cases the "trust con-
| tiRueS," says the Court, $50 long as the re-
| mander-men under the trust deed are in
| capable of managing their property IN their
own right" that is (still using the language
| of the COURT, "during the minority Of remain
der-men." What trust? The trust as origi-
nally created. The legal estate of the trustee
continues. The legal title remains in the
| trustee. Hence we are OF the opinion that
| when Mrs Wetter died this trust did not he
come executed; that the legal estate was not
| cast upon the children; that it continued in
| the trustee, and that the N inOrity of the chill
dren is no protection against the operation of
the statute.
The defendants further insist that even il
| the legal title to this property continued in
the trustee during the minority Of the Wet
| ter children, still that the statute
has not run against them, because
!
trust and therefore holds the property subject
TO it. The plaintiff is a mere volunteer that is
she received the property by deed Of gif from
| Erastus Il. Marcy, and whatever equities
might be urged against him can be now urged
| equally against her. The defendants claim
| that there are facts which show actual notice
to Marcy OF this trust, and that in any event
| the record OF these deeds and wills operates as
| constructive notice. With reference to this
| point in the case we have had no difficulty.
| we understand the following to be true legal
/ LEGAL 4 N he fruG az 90
His deed conveys TO purchaser that legal
title If the purchaser has no notice of the
trust he receives that legal title free from the
| trust. But If he has notice of the trust, be it
actual or constructive, his title is affected by
the trust, that is to say, the claims of
| the cestui que trust may be asserted against
his title; Dr00ided, however, these claims are
| asserted before the operation of the statute
| has perfected his title. In this case the legal
title was in Wetter at the time that he eXecu-
ted the decd to Marcy, and if it were true
| that Marcy was not chargeable with notice of
the trust then Marcy received the title free
| from the trust. He received at once a perfect
| and unassailable title. We take it to be true,
| however, that Marcy t0ds ehargeable at least
with constructive notice of this trust, but the
| only result of this is that the claims OF the
| cestui que trusts could be asserted against the
| title of Marcy or his dOnee at any time before
| that title has been perfected by the operation
| of the statute. II, however, there has been
seven years adverse possession of this land by
| Marcy or his dOnee, Mrs. Raymond, under the
| deed from Wetter, then the title conveyed by
| that deed has been perfected, and cannot be
assailed now by the claims of these. children.
| The prescriptive title thus resulting from
| seven years adverse possession of the land
could not be defeated by mere notice Of
| a trust with which the law might make
| Marcy chargeable. Actual fraud, involving
moral turpitude and bad faith, must be shown,
| and there is no evidence of such fraud here.
! IS Ca, %, Brady VS., Walters; 81 Ca, 139 ~,
| Wingfeld VS.. Virgin; A Ca, 1901, Garrett vs.
! Adrain.
These defendants further insist that if the
| legal title were in Wetter as trustee, yet that
| he was estopped by his deed from bringing
| suit to recover the property which he had
| conveyed, and that for this reason the statute
| has not run in favor of the plaintiff. What
ever may be the law elsewhere, we do not
| think this proposition maintainable in this
| State. Our Supreme Court has several times
| decided that the unauthorized conveyance of
| property by one who holds it as trustee is re-
| garded as his individual act, and that 1t does
| nos affect his right as trustee to sue for and
| recover such property, and that the statute
rams against him and against his cestui que
trusts; the fact that they are minors
| is immaterial, the legal title being in him.
| 10 Ca, 35S, Worthy VS.. johnson; Kelly, 256,
Paschal, Administrator, VS.. Davis; 81 Ca, 425,
Goldsmith vs. Coleman; 55 Ca, 2S-9, Brady
| VS.. Walters.
Contrary to our habit, we have not only
| stated, but discussed, in this charge, the legal
| questions involved in this case. This we have
| done, because we believe that it will be more
/ satisfactory to counsel and will aid in the fur-