McCook v. Harp , 81 Ga. 229 ( 1888 )

Bleckley, Chief Justice.

1. We discover no error committed by the court in shaping questions and submitting them to the jury. There was no infringement upon any doctrine of sound practice enunciated in Coleman vs. Slade, 75 Ga. 61; Ruffin vs. Paris, Id. 653; The Mayor vs. Harris, Id. 761, or Creech vs. Richards, 76 Ga. 36, It seems to ns also, that the range of the questions was wide enough to comprehend all the essential elements of the case. If, however, counsel for the defendant below had thought otherwise, it was his province to suggest to the court in due time such appropriate questions as he conceived were by the court omitted. It is not a commendable practice to come forward on a motion for a new trial with a list of questions which ought to have boon suggested when the trial was in progress, or at the conclusion of the judge’s charge to the jury.

2. The controlling question in the case is, as to the liability of the trustee for the value of the confederate money received by him, though the money may have been lost by the results of the war. For the doctrine that a trustee could receive and use Confederate money as prudent persons dealt with their own, we are referred to Campbell vs. Miller, 38 Ga. 304; Miller vs. Gould, Id. 465; Westbrook vs. Davis, 48 Ga. 473; Saxon vs. Sheppard, 54 Ga. 286; Nelms vs. Summers, Id. 605; and we have examined also Venable vs. Cody, 68 Ga. 171. The doctrine of these cases we recognize as sound and correct, but they are no authority for relieving a trustee who has mixed trust money with his own and used the same as his own. The case of McWhorter vs. Tarpley, 54 Ga. 291, furnishes the correct rule on this subject. The court below comprehended the spirit of that case and administered it properly to the circumstances of the present ease. The trustee, by making the Confederate money received by him his own, and not keeping it or loaning it in a way to identify that money or its proceeds, cannot discharge himself by producing a sufficient amount of Confederate money which he may have happened to have had on hand at the conclusion of the war, and may have been ■ pleased then to consider as representing the trust fund.' Eor aught that appears, the identical Confederate money belonging to the trust may have been expended by the trustee for paying the expenses of himself and family, or for any other object, and not one cent of the same may have gone to produce the Confederate money which he happened to have when the war closed.

3. If the jury committed any error, it was in stating the amount received April 5, 1862 as $84.77, instead of $284.77, and in finding that $300 was received July 20th, 1864; but the result was in favor of the trustee and not against him; for the value of the $300 was only $15, whereas the value of the $200 omitted would be $150. This result is not complained of by the other party, and certainly the trustee has no cause to complain of it.

4. The decree is excepted to, and-we think it is erroneous in allowing interest previous to the death of the tenant for life, which it seems took place May 10th, 1882. The interest accruing upon the fund up to that time was her property, not that of the remaindermen. We direct that the decree he modified so as to eliminate all interest accruing prior to May 10th, 1882.

5. "We direct also that no allowance be made to the trustee for the payment of taxes, inasmuch as the taxes were chargeable to the tenant for life. Austell vs. Swann, 74 Ga. 278. Had any taxes been paid on the corpus by the trustee since the death of the tenant for life, such payment would have been proper matter of allowance; but we do not understand that any such have been paid, his position being that the trust fund was wholly lost. To pay taxes as trustee would be inconsistent with this position.

Judgment affirmed, with direction to modify the decree.