Bussey v. Bussey , 1924 Ga. LEXIS 221 ( 1924 )

Hill, J.

(After stating the foregoing facts.)

The court held that the deed made by Rebecca S. Bussey to A. S. Bussey, as described in the pleadings, was taken by A. S. Bussey at a time when he was charged, as executor of the estate of H. W. Bussey, with the administration of the lands specified in the deed; and that the deed from Mrs. Bussey to A. S. Bussey passed to him the title of Mrs. Bussey for A. S. Bussey to hold as executor of the will of H. W. Bussey and to be administered by him in accordance with the will of H. W. Bussey, and did not pass into A. S. Bussey any individual right or interest whatever in any way in conflict with the terms and conditions of the will. The general rule is that “Trustees and other represéntatives with custody of papers have ample opportunities to discover defects in the title of property m their care, and are estopped from setting up title adverse to their trust.” Civil Code (1910), § 5739. The court below evidently placed its decision upon the general rule stated above, and certain decisions seemingly in accord with that rule. The defendants in error, in support of the decision of the learned trial judge, cite the cases of Benjamin v. Gill, 45 Ga. 110, 113, which was a decision of two Judges, and Murphy v. Vaughan, 55 Ga. 361, in which there was one dissent, and others of similar import. In the Benjamin case, Judge McCay, while laying down the general rule that a trustee or executor cannot, after he has accepted the trust, set up a title adverse to that trust, said: “ There may be some question, whether this legacy passed under the will at all. Was it not, if this deed be valid, an adeemed legacy ? And can the executor be fairly said to claim adversely to the will, when the date of his claim is subsequent to the will? Can he be fairly said to contradict the will, when, by the very deed he sets up, he recognizes that at the date of the will the title was in the testator, under and from whom his own title is derived? Our judgment is put solely on the question of possession, and we express no opinion on the other question.” Whatever rights the plaintiffs in the court below have, .except Mrs. R. S. Bussey, are derived from the will of H. W. Bussey, which had been duly probated and recorded. It will- be observed by reading the third item of the will, set out in the statement of facts, that the testator disposed of all his property. With the exception of Mrs. R. S. Bussey, the plaintiffs can only claim as legatees under the will, and can assert no title as heirs at law. Their title depends upon the title of the testator at the time of his death. If the testator had no title to the lands in controversy at the time of the execution of his will and at his death, he having previously by deed conveyed these lands to his wife, they would have no title. The plaintiffs attack the deed from Smith and H. W. Bussey, on the ground that it had never been delivered; but on the trial of the ease the jury found, in answer to the first question submitted to them by the court, that this deed had been delivered by the testator to his wife, and that the deed had been accepted by her. The plaintiffs did not except to this finding of the jury. So, it appears that the testator did not die seized of the land in controversy, and therefore he had no title to it. It follows that the plaintiffs can get no title to these lands as legatees under the will. How, then, are they entitled to recover ? They base their right to recover on the doctrine of estoppel. They allege and assert that A. S. Bussey is estopped from setting up a title which he holds under H. W. Bussey, by reason of the fact that he was appointed executor and acted as such, and having in his possession the lands in controversy and seeking to administer them. But if, as pointed out above, H. W. Bussey had no title to the lands, the plaintiffs have no title. This being so, the plaintiffs are not entitled to recover unless they acquire some title by estoppel which they set up against A. S. Bussey.

But estoppel conveys no title. Sheppard v. Reese, 114 Ga. 411, 413 (40 S. E. 282). While it is true that in a contest between the plaintiffs and Bussey he might be estopped from setting up title against the plaintiffs, such estoppel would not enable them to assert title to the lands in controversy upon their own showing under the allegations of the petition, and under the evidence and the verdict of the jury unexcepted to, finding that the deed from the testator to his wife had been executed and delivered by him to her and accepted by her. In these circumstances no title is shown in the plaintiffs; and for this reason the court erred in decreeing that the property was the property of the estate of the testator and that it passed under his will, that is, that A. S. Bussey, under the deed from Mrs. Bussey, held the property in trust for the benefit of the estate of H. W. Bussey, the testator.

What is ruled above being controlling of the issues in this case, it is unnecessary to decide whether the judgment of the court of ordinary relieving A. S. Bussey as executor is a valid judgment and binding on the plaintiffs.

Judgments reversed.

All the Justices concur.