Downs v. Harris

1 Ga. L. Rep. 262

• Court: Supreme Court of Georgia
• Decided: July 1, 1885
• Status: Published

Opinion

Hall, J.

A trust was created in 1860, whereby a woman'and her children were jointly interested in the usufruct or income of the estate during her life, and at her death the remainder vested in her children or the representatives of such as might be dead. Prior to June, 1865, the trustee failed to follow the provisions of the law in the management of the estate and committed a devastavit. The mother died on or about January 23, 1883. On March 27, 1884, one of the children filed a bill against the trustee on account of such devastavit:

A. C. McCalla, for plaintiffs in error. F. Jordan, for defendant.

Held, that the action was barred by the statute of limitations of' 1869. (Acts 1869, pp. 133, 131, sec. 5.) Constructive fraud will not prevent the bar of the statute from attaching, but it must appear that the trustee acted corruptly and committed actual fraud or such as involves moral turpitude. 62 Ga., 123; 67 Id., 466; 68 Id., 201.

Judgment affirmed.