Martin v. Newton , 166 Ga. 134 ( 1928 )

Gilbert, J.

Construing items 3 and 10 of the will together, consistently with the cardinal rule that the intention of the testator must control, E. M. Amos created a trust for his mentally incapable son, John E. Amos, in the real estate described, and appointed a trustee upon whom he imposed the duty “to hold for the use of the said John E. the property herein bequeathed to him for and during the term of his life or the continuance of his lunacy,” and upon whom was imposed the specific duty to “apply such portion of the income of said property to the use of the said John E. as the said trustee shall deem necessary for the comfort of said John E., and the remainder of any such income, after paying any expenses for taxes, insurance, and repairs, shall be equally divided annually among my lawful heirs.” Under said items of the will the trustee named therein took legal title and held it for the benefit of the cestui que trust, John E. Amos. The latter took the equitable title.

Paragraph 8 of the petition alleges that the title to the property under the will was vested in John E. Amos, and the answer admits that allegation. The plaintiff insists that this admission is conclusive upon the defendant. We hold that the admission is not conclusive on the question of what title John E. Amos had under the will.

As the trustee held legal title to the property, and a judgment having been rendered against him as such trustee, followed by execution, levy, and sale of the property by the sheriff after due advertisement, and sheriff’s deed made to the purchaser, such deed at least constituted color of title. The deed having been executed in 1901, and the grantee therein and successive transferees having occupied the premises under color of title from the date of said deed until the filing of this suit to the May term, 1927, of the court, prescriptive title under color had ripened against the trustee, which bars the cestui que trust, his heirs and administrators. It follows that the court did not err in directing a verdict for the defendant.

Judgment affirmed.

All the Justices concur.