Shaw v. Wylds

52 Ga. 63

• Court: Supreme Court of Georgia
• Decided: January 15, 1874
• Status: Published

Opinion

Trippe, Judge.

The verdict of the jury was what the evidence required. The trustee seems to have done nothing for several years towards collecting the claim that was in his hands, the note for the money he had loaned. He never instituted suit on the note until the counsel for defendant in error caused him so to do, and then after the judgment was obtained nothing further was done with it. There is no entry on it, and it may be added there is in the record no satisfactory proof but that it might have been collected at any time. It certainly could up to 1870, and the only proof to the contrary since that time is that the estate of the indorser is embarrassed, and believed to be insolvent. That might well be, and yet a judgment obtained three years before the indorser’s death be perfectly good. The trustee doubtless relied on what he said was an understanding with the young lady, that she was “not to pester him any more for the interest, but was to call on the borrower for it.” How could she do this, with the’ note in the trustee’s possession, and he refusing to let her have it ? A trustee cannot thus discharge himself from his duty to make the proper effort to collect trust funds which he has loaned. He has accepted the trust, received the property, the law grants him compensation, and it would be unjust to allow him to reply to a female cestui que trust, just after she has reached her majority, that she must make her own collections, and that she agreed so to do. And this, too, to be the collecting of the interest due on a note which is in his hands, and the borrower residing one hundred miles off. We are satisfied tlie verdict is right, is what it ought to have been^ and that a new trial should have been granted had it been otherwise.

Judgment reversed.