Vigal v. Castleberry , 67 Ga. 600 ( 1881 )

Jackson, Chief Justice.

This suit was brought by the trustee of Hattie R. Hastings against the executors of the former trustee for the recovery of money in the hands of the deceased trustee which belonged to the cestui que trust, and which the former trustee received and did not pay over, and which his executors have on hand and refuse to account for. The aption is brought on a bond by the ordinary for the •use of the present trustee against the executors of the deceased trustee and his sureties. On demurrer the cause was dismissed as to the sureties, and proceeding against the executors alone, a verdict was rendered against them, and judgment rendered thereon. A motion was made for a new trial, and overruled, and the judgment thus overruling this motion is assigned for error.

1, 2. The condition of the bond is to administer the trust property according to a will in evidence, which gave it to the trustee for the use of Háttie R. Hastings, and it appears in testimony that it was turned into land by the defendants or their testator, and the deed taken in his name. The returns of the deceased trustee showed the sum he received, and it is wholly immaterial whether he received it in property or in money. He charged himself with its value and returned it as money. Thus the bond was broken by the failure to account for it, and the recovery should have been had, and the verdict and judgment are right.

From this view of the case it will be seen that the refusal to charge that if the former trustee received land, there could be no recovery, is not erroneous ; and the other refusal in regard to the bond not being broken, couched in such broad terms as to make the jury judges of law and fact as to what would break it, is not error, the presumption being that the court told the jury what facts, if proved and believed, would in law be sufficient to authorize them to find that it was broken, and the evidence being abundant that it had been broken.

3. The charge in regard to ten- per cent interest was cured by the order to write that off over seven per cent, and the compliance of the plaintiff with that direction of the superior court.

4. Of course the non-suit ought not to have been granted in the light of what has been written above.

Judgment affirmed.