Campbell v. Miller , 38 Ga. 304 ( 1868 )

Brown, C. J.

After a careful review of this case, I am satisfied that the “ written synopsis of the points decided,” which was reduced to writing and delivered during tlíé term, with the concurrence of the whole Court, covers every point that is material. I might sustain these points in a lengthy opinion, supported by numerous authorities; but I do not deem it necessary. Taken in connection with the report of the case, the following synopsis is all that is necessary to a correct understanding of the decision. I therefore annex it, as the written opinion of the Court in this case, instead of using it as a syllabus, to Ije elaborated in the written opinion, as in other cases.

1. The marriage settlement in this case was a contract between the parties intending marriage and the trustee; which vested a life-estate in the $2,000 00 of notes in Mrs. Miller, with remainder in her children, who are named, after her death. A trustee in possession of the trust property is only bound to ordinary diligence in its preservation and protection.

2. If the trust property consists of promissory notes, the trustee may receive payment of the notes when due, in such currency as a prudent man would receive for debts due him under similar circumstances.

3. A trustee who, in good faith, received Confederate treasury notes in payment of a note held in trust, under the Act of 18th April, 1863, ácted under color of law, and is protected by the Act of 1866, and the Ordinances of the Conventions of 1865 and 1868, and if he invested said treasury notes without proper authority, or lost them by negligence, he will only be liable for their value when received, allowing him a reasonable time to re-invest, A trustee who held a promissory note in trust prior to the adoption of the Code, (1st January, 1863,) if he acted in good faith, had a right to receive payment in the currency generally received by prudent men in the transaction of their own business, and to re-invest such currency in the note of a person who was then entirely solvent; and if, by the results of the war, the maker proved insolvent, the trustee is not liable for the loss.

4. A trustee, who received payment of a note held in trust in the then currency, before the adoption of the Code, and after its adoption, invested it, otherwise than in the stocks, bonds, or other securities issued by this State, or other securities authorized by law, and without an order of Court, did so at his own risk, and is liable for the value of the currency received by him, to be estimated at the time when it should have been re-invested, allowing him a reasonable time after its receipt, to obtain the order and to re-invest the fund.

5. If the trustee changes the investment, with the consent of the cestui que trust, who is of legal age, he is not liable for any loss growing out of such new investment.

6. The Court erred in refusing to allow the trustee to prove that any investment made by him, or any change of the investment prior to 1st January, 1863, was a prudent investment.

7. Counsel having asked the Court to give his charge to the jury in writing, it was his duty to do so, and he should have read it to the jury as written, without any additions or verbal explanations.

8. If counsel, in writing, requested the Court to give certain charges to the jury, such written request must be upon a point applicable to the facts in the case, and must not assume that to have been proven which is not in proof, and must, as written out by the counsel, be correct law, or the Court is not bound to notice it. If, however, the Court thinks proper to give the ppint in charge, with modifications, he may do so, and such modifications need not be in writing, but the whole taken together, as given by the Court, must be correct.

Judgment reversed.