Denny v. Gardner , 152 Ga. 602 ( 1922 )

Gilbert, J.

The court did not err in sustaining a demurrer to the petition, on the ground that.it was barred by the statute of limitations. It appears that the petition was filed a little more than six years after the qualification of the executors of the life-tenant. It is insisted by the plaintiffs in error that the suit is not barred until ten years from such date has elapsed, on the ground that the life-tenant was, by operation of law, a trustee for the remaindermen, and as such held the property for which the remaindermen sue. Civil Code (1910), § 4366, which has reference to limitation of actions against trustees, applies only to technical trusts. Farrar v. Southwestern R. Co., 116 Ga. 337, 345 (42 S. E. 527). The facts alleged in the petition do not show that the life-tenant sustained such a relation to the remaindermen and the property devised to them by the testator, Jordan, as to constitute her such a technical trustee; consequently the executors of the life-tenant, Mrs. Gardner, were not such technical trustees, and the above-mentioned section of the Civil Code does not apply to the action brought against them. There is some attempt to meet this by alleging in the petition that certain of the property was concealed by intentionally or unintentionally mingling with other funds of the life-tenant; and it is to be inferred that petitioners seek to meet the contention that the four-year statute is applicable, by relying on the allegation that their rights in this property were not known. It might be that either the life-tenant or the executor of a life-tenant might so conceal the property to which a remainderman would have a right upon the death of the life-tenant that the statute would be tolled; but the petitioners should have set forth clearly and distinctly that their rights were so concealed as to cause excusable ignorance on their part as to their rights, but in doing this they should have alleged distinctly when they learned of their rights, so that the court would know when the statute began to run, or they should show that they could not have discovered it by proper diligence. Taking the allegations of the pleading most strongly against the petitioners, it does not appear that their rights were unknown to them. If, knowing they had rights, upon the death of the life-tenant and the appointment of her executors they were not able to identify this property, as pointed out, they should then have moved, and not waited until after the statute had attached. No facts-are clearly and distinctly alleged in this petition which takes it out of the four-year rule. If we were sustaining this demurrer on' the ground of laches, it might be necessary to consider the suit which was brought by the individual heirs, and which this court held could not be maintained. Denny v. Gardner, 149 Ga. 42 (99 S. E. 27). But that suit did not have the effect of extending the time within which action could be brought. The suit against the executors of .the life-tenant does not fall within the said section as a suit brought against executors, because said section applies to suits brought against persons having possession of property as executors of the testator, from whom the petitioners claim as heirs. The petitioners in this case claim as remaindermen under the will of Green H. Jordan. The defendants are executors of the estate of Mrs. Gardner, life-tenant under the will of said Jordan. The remaindermen could not sue until the death of the life-tenant. Conceding that her executors could not be sued within twelve months from their qualification under the Civil Code (1910), § 4015, adding one year on account of this statutory immunity from suit to the four years limitation provided in the Civil Code (1910), § 4362, this suit was barred after five years from the qualification of the executors in 1913. The suit was filed in 1920, and is therefore barred. Judgment affirmed.

All the Justices concur.