as L. Z. Rosser, Jr., and Stiles Hopkins, both of Little & Green." As to the meaning of of Atlanta, for plaintiffs in error. J. A. & J. that condition, "subject to agreement with M. Noyes and C. T. & L. C. Hopkins, all of L. C. Green," there was an issue of fact beAtlanta, for defendants in error. tween Davis and Green; Davis testifying that the agreement between him and Green was to the effect "that the commission should be held by the said Davis and should be paid over by him to whichever one of said real estate firms should be entitled thereto according to a decree of court," while L. C. Green testified that "the words 'as per agreement with L. C. Green,' which were inserted in the sales contract by Davis, had no reference to any agreement to pay the money into court, or to allow the court to pass a decree as to whom the money belonged; but these words were inserted before the suit by Little & Green against Davis was filed, and had reference to a statement of Green to Davis when Davis refused to pay Green his commission; that this agreement was a proposition by Green that if Davis should pay Green the commissions, Green would give to Davis a good and solvent bond in an amount not less than twice the amount of the commissions, conditioned to reimburse Davis BECK, J. (after stating the facts above). [1] 1. We do not think that the court erred in overruling the demurrer to the petition for interpleader. Under the allegations of the petition the sole question for determination was which of the two parties whom the plaintiff sought to have interplead had procured a purchaser. The petitioner admitted that he owed one or the other the sum of $387, and sets up facts to show that this identical sum was due by him to one or other of the two real estate firms. The petition made him practically a stakeholder, owing but one debt to one of two parties, and which he could not safely pay to either without the hazard of having to pay the debt twice; and the question as to which was the rightful claimant of the debt depended, according to his allegations, upon the determination of a single issue of fact, which was, as we have stated, Who had procured the purchaser? This was a question of fact, in the solution of which, under the allegations of the petition, the petitioner had no interest whatever. And moreover, this issue of fact (the sole issue for determination before it could be rightly determined which of the two claimants was entitled to the fund) was an issue made by the claimants themselves, in the suit brought by one of them, and in the suit which the other was threatening to bring. We mean by this that this plain, single issue of fact was involved in the two suits, the one actually brought, and the other threatened, as stated in the petition. Under the allegations of the peti tion the plaintiff therein clearly owed but a single debt. No question of a double liability could arise under the allegations of the petition, and consequently the object of the petition for interpleader was against the danger of a "double vexation against a single liability." The allegations of the petition, taken as true, show the right of the plaintiff to an order requiring the defendants to interplead. [2] 2. But upon the hearing to determine whether the injunction should be granted and the parties required to interplead under the issues made by the allegations contained in the answer of the plaintiffs in error and the evidence submitted to support these allegations, a different case from that made by the petition was disclosed. Under the allegations of the answer filed by Little & Green and the evidence introduced in support of that answer, Davis, the petitioner, ceased to be a disinterested stakeholder, because, under one theory of the evidence, Davis had agreed in writing to pay the commission to Little & Green, "subject to agree should Davis ever have to pay this commission to another agent, and that this was the only agreement ever made by Green and Davis, and this statement was made before suit was filed against Davis for Little & Green. Again, while it is alleged in the petition that there universal custom in the city of Atlanta, well was a known to defendants and all dealers in real estate, that when the same piece of property is placed for sale with a number of real sion should be due for the sale of the propestate agents, only one real estate commiserty, and the same was to be paid to the party bringing about the sale; and, while this allegation was supported by the testimony of a witness introduced by the plaintiff, it was controverted on the hearing, and a sharp issue raised thereon by the testimony of L. C. Green, who testified that from an experience of between two and three years in the real estate business in Atlanta, and being familiar with all the customs governing the trade, he could and did swear that there was no custom in Atlanta to the effect that only one real estate commission was to be paid for a sale of property listed with more than one agent, but that in every such case the number of commissions was a matter of contract in each case. With the introduction of this conflicting evidence in reference to the meaning of the words "subject to agreement with L. C. Green," and upon the subject of the custom of paying commissions to only one agent (whether the testimony of Davis or that of Green was true with reference to the agreement, or whether the testimony introduced by the plaintiff or that introduced by the defendants with reference to the custom was true), the character of the petitioner as a disinterested stakeholder vanished, onist of Little & Green, and interested in destroying the effect of the written contract between him and Little & Green to the extent of eliminating from that contract a promise to pay the commissions to Little & Green, taking from them a bond for indemnity. Under Davis's theory of the case, as developed by the evidence, he was interested, as against Little & Green, to the extent of removing them from the advantageous position of the holder of a written promise to pay, to a level with the other claimants of the debt, W. L. & J. O. Dupree, as mere claimants of the fund, with the validity of that claim depending upon the establishment of the fact that they had effected the sale. Having under the evidence been divested of the character of a mere stakeholder, Davis was no longer in position to enforce his demand for interpleader between Little & Green and the Duprees, and the court erred in holding otherwise. Judgment reversed. All the Justices con (Syllabus by the Court.) 1. SPECIAL ASSIGNMENTS. ACTION-VERDICT EVIDENCE. The verdict is contrary to the evidence. The evidence tended to show that there were seven legatees entitled to the estate left by the testator. The jury found in favor of the three plaintiffs the full amount of all cotton left by the testator, certain rents, and the purchase money of certain lands collected by the executors. The three plaintiffs were entitled to recover only three-sevenths of the estate left by the testator. The following portion of the verdict of the jury, under the facts of this case, was also contrary to the evidence and the law, to wit: "We, the jury, direct that six of the heirs at law be paid the sum of $200.00 each, as said will provides." [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 1274–1297; Dec. Dig. § 314.*] Error from Superior Court, Johnson County; K. J. Hawkins, Judge. (140 Ga. 208) DE VAUGHN ▼. HAYS. (Supreme Court of Georgia. July 15, 1913.) (Syllabus by the Court.) 1. TRUSTS (§ 114*)-CONSTRUCTION-EXECUTED OR EXECUTORY. A devise to a named trustee, in trust for another for life, and after his death to such child or children as he may leave surviving, and, in the event there shall be no such child the will, share and share alike, created a trust or children, then to other legatees named in only for the life estate, with legal remainder over, and the trust for life became executed upon coming into existence, if the life tenant were then sui juris, or so soon as he became so. [Ed. Note.-For other cases, see Trusts, Cent. Dig. § 164; Dec. Dig. & 114.*] 2. TRUSTS (§§ 9, 56*) — SPENDTHRIFT TRUST — VALIDITY-ANNULMENT. A valid trust may, under certain circumstances, be created in this state for the benefit of one sui juris. The mere fact, however, that a legal remainder over is made in the instrument creating a trust, will not suffice to uphold the trust for one sui juris. If at any time the grounds for the creation of a "spendthrift" trust shall cease, then the beneficiary thereof shall be possessed legally and fully of the same estate as was held in trust, and he may file a proper proceeding in the superior court where the trustee resides to have the trust annulled on that ground. The petition in the present case being brought to annul a "spendthrift" trust on such ground, and the allegations of the petition, which were not denied in the answer filed, being sufficient to authorize the granting of the relief sought, the court erred in denying the prayers of the petition. Cent. Dig. §§ 6, 7, 76; Dec. Dig. §§ 9, 56.*] Error from Superior Court, Macon County; Action by O. B. De Vaughn against J. E. Hays. Judgment for defendant, and plaintiff brings error. Reversed. The will of J. E. De Vaughn, executed July 11, 1908, was duly proven in solemn form and admitted to record. The portions of the will here material are as follows: "Item 3. I give and bequeath to Mary Porter De Vaughn, Mrs. Mamie Pierce, Mrs. Rosa Polhill, Carl L. De Vaughn, Mack S. De Vaughn, and Otis B. De Vaughn all the remainder of my realty and personalty, and other property of every kind and description, share and share alike, except my wife, Mary Porter De Vaughn, to have a certain policy of life insurance payable to her, and to Mack S. De Vaughn the Lytle and Wood farms, containing 200 acres, more or less; also the dwelling house and lot where he now See, also, 138 Ga. 403, 75 S. E. 319. lives; and to Otis B. De Vaughn five thouHines & Jordan, of Atlanta, and Kent & sand dollars in cash, so that the last three Moye, of Wrightsville, for plaintiffs in er-named heirs will be made equal in property Wm. Faircloth and A. L. Hatcher, both heretofore given off to my heirs hereinbefore of Wrightsville, and Little & Powell and M. mentioned. F. Goldstein, all of Atlanta, for defendants in error. Action between S. A. Flanders and others and J. K. McAfee and others, executors. From the judgment, McAfee and others bring error. Reversed. ror. HILL, J. "Item 4. I give to my nephew, J. E. Hays, in trust for my son, Otis B. De Vaughn, the above described property as set forth in item Judgment reversed. All the No. 3 of this my will, to be held by said Hays and rented annually, or leased as the case Justices concur. may be, and the proceeds applied monthly | Otis B. De Vaughn for life, and after his for the support of my said son Otis B. De Vaughn, during the remainder of his life, and at his death, his said property held in trust by said Hays, shall go to his child or children then in life, and in the event he shall have no child or children at his death, his said interest or property so held in trust by J. E. Hays, shall revert back to the other heirs of my estate, as mentioned in item 3 of this my will." death to such child or children as he might leave surviving, and, in the event that there should be no such child or children, then to other legatees named in the will, share and share alike, created a trust only for Otis B. De Vaughn during his life, as no express trust was created for those to take in remainder. Such a trust was executed as soon as it became operative, if Otis B. De Vaughn was then sui juris, or as soon as he became so. Vernoy v. Robinson, 133 Ga. 653, 66 S. E. 928, and cases cited. While under certain this state for the benefit of a person of full age (Civil Code, § 3729; Sinnott v. Moore, 113 Ga. 908, 39 S. E. 415; Moore v. Sinnott, 117 Ga. 1010, 44 S. E. 810), the mere fact that there is a legal remainder over will not suffice to uphold a trust for one sui juris. The ruling in Lester v. Stephens, 113 Ga. 495, 39 S. E. 109, is not authority to the contrary, for there the testatrix by her will undertook to create a trust for her brother and sisters, who were sui juris and had no intemperate, wasteful, or profligate habits, and which it was held she could not do under Civil Code, § 3729, and that therefore upon her death the trust became immediately executed. Otis B. De Vaughn brought his petition against Hays, as trustee, in which the provisions of the will were set out, and alleging circumstances a valid trust can be created in that a partition in kind of the property left by the testator had been made, and that the defendant as trustee had received the portion allotted to him in trust for petitioner, and had since held and managed the same as such trustee. It was further alleged that petitioner was 21 years of age, of sound mind, and able to manage his own property, and that, if there were ever any reason why the property devised to petitioner should be put in the hands of the trustee, such reason no longer existed, and that the defendant was willing to resign as trustee. The allegations of the petition were not denied in the defendant's answer. The prayers were that the defendant be allowed to resign his trust, and that petitioner be authorized to take charge of and control the property devised to the defendant as his trustee, and that a full accounting be had between petitioner and defendant as trustee. * Civil Code, § 3729 provides: "Trust estates may be created for the benefit of any minor, or person non compos mentis. Any person competent by law to execute a will or deed may, by such instrument duly executed, create a trust for any male person of age, whenever in fact such person is, on account of mental weakness, intemperate habits, wasteful and profligate habits, unfit to be entrusted with the right and management of property: Provided also, if at any time the grounds of such trust shall cease, then the beneficiary shall be possessed legally and fully of the same estate as was held in trust, and any person interested may file any proper proceeding in the superior court, were the trustee resides, to have the trust annulled on that ground, if he so desires. Any person having claims against the beneficiary may avail himself of the provisions of the Code in relation to condemning trust property at common law." There being no issues of fact involved, the case by consent order was heard in vacation by the judge, with the right of exception to both parties reserved. The judgment rendered was adverse to petitioner, and the material portion of it was as follows: "It is my opinion that, from the broadest contruction that could be given the will, the testator gave the property in trust for his son, the plaintiff, for life, with limitation over to plaintiff's children, and, if no children, then to revert back to the other heirs mentioned in said item of the will. * The testator had the right to create this kind of an estate, and to appoint a trustee to carry out his wishes in regard to this property, and to preserve an estate over in accordance with his wishes. [2] Treating the trust created for his benTherefore I have no authority to remove the efit in the will under consideration as falling trustee and turn the property over to the within the provisions of the Code section plaintiff, and, should the trustee resign, it just referred to that is, as a "spendthrift would be the duty of the court to appoint trust"-the petitioner sought in the manner another, to preserve this estate, and to carry | prescribed to have the trust annulled on the out the wishes of the testator in regard there- ground that, if the trust was created for any to. The prayers of the petition are hereby of the reasons specified in such section, they denied." To this judgment petitioner excepted. Jule Felton, of Montezuma, for plaintiff in error. R. L. Greer, of Oglethorpe, for defendant in error. FISH, C. J. (after stating the facts as had ceased to exist, for the reason that at the time his petition was filed he was 21 of managing and controlling his own propyears of age and fully capable in every way erty. As the allegations of his petition were not denied by the defendant trustee, the court erred in denying the prayers of the petition. given to the defendant in trust for the peti-[ tioner, the court may upon the trial provide by decree for the protection of the corpus for the benefit of the contingent remaindermen. See, in this connection, Chisholm v. Lee, 53 Ga. 612. J. C. Linney and A. C. Saffold, both of Cochran, for plaintiff in error. W. A. Wooten, Sol. Gen., of Eastman, and T. S. Felder, Atty. Gen., for the State. LUMPKIN, J. Judgment affirmed. All the Judgment reversed. All the Justices con- Justices concur. cur. (140 Ga. 223) ROY v. STATE. (Supreme Court of Georgia. July 15, 1913.) (Syllabus by the Court.) 1. CRIMINAL LAW (§ 939*) - NEW TRIAL GROUNDS. Where a mother was charged with murder resulting from an assault upon her child, in which the latter was beaten and stamped, and it appeared that several persons were present, one of whom assisted the mother in catching the child, it furnishes no ground for reversal that after the trial the evidence of some of these eyewitnesses (including the one who assisted her), who had not been subpoenaed or introduced as witnesses on the trial, was claimed to have been newly discovered; cient reason appearing why the accused did not know of such witnesses, or could not procure their evidence, at the trial. [Ed. Note. For other cases, Law, Cent. Dig. §§ 2318-2323; Dec. Dig. 8 939.*] (140 Ga. 207) CALLAWAY v. BEAUCHAMP et al. (Supreme Court of Georgia. July 15, 1913.) (Syllabus by the Court.) 1. APPEAL AND ERROR (§ 499*)-Record-0B JECTIONS. In order to authorize this court to reverse the judgment of the trial judge allowing an amendment to pleading, the record must distinctly disclose, not only that objection to the allowance of such amendment was made at the time the same was allowed, but also the ground of such objection. McCowan v. Brooks, 113 Ga. 532 (4), 39 S. E. 115. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 499.*] MOTION no suffi- 2. NEW TRIAL ( 124*) see Criminal 2. CRIMINAL Law (§ 956*)—NEW TRIAL-AFFIDAVITS-SUFFICIENCY. Where such witnesses made mere general statements in affidavits that they did not apprise the defendant or her counsel before the trial of the facts to which they could testify, for the reason that they "had no opportunity to see defendant after her arrest, or her counsel after counsel had been employed," and the defendant and her counsel made affidavits in which they stated in general terms that they did not know of such evidence before the trial of the case, and could not by the exercise of ordinary diligence have discovered it, without any reason being shown why it could not have been discovered, this did not suffice to explain the failure to obtain such testimony before the trial, or to furnish ground for a new trial. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2373-2391; Dec. Dig. § 956.*] 3. CRIMINAL LAW (§ 1156*) APPEAL GROUND FOR REVERSAL-NEWLY DISCOVERED EVIDENCE. Newly discovered evidence, which is only cumulative or impeaching in its character, will not ordinarily require a reversal, where the presiding judge has declined to grant a new trial on that ground. 4. VERDICT AND DENIAL OF NEW TRIAL AP CIENCY. The ground of a motion for new trial, complaining of the admission of documentary evidence, over stated objections, which does stance, is incomplete, and fails to set forth not set forth the document, in form or subany question for decision. Stewart v. Bank, 100 Ga. 496 (2), 28 S. E. 249; Stewart v. Randall, 138 Ga. 796 (5), 76 S. É. 352. [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 250-253; Dec. Dig. § 124.*] 3. ADVERSE POSSESSION (§ 85*)—EVIDENCE OF TITLE-DEEDS. In an action of complaint for land, where the plaintiff relied on prescriptive title, ancient deeds, purporting to convey the land, not connected with plaintiff's chain of deeds, were inadmissible at his instance as tending to illustrate the good faith, of his possession, though offered in connection with extraneous parol evidence to the effect that such deeds were included among a number of other ancient, though more recent, deeds, handed down to him as muniments of title by his predecessors. [Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 313, 498-503, 656, 657, 660, 668, 688-690; Dec. Dig. § 85.*] 4. ADVERSE POSSESSION (§§ 109, 116*) — REFUSAL OF INSTRUCTIONS-TITLE-ABANDONMENT. Where title to land is acquired by seven years' adverse possession under color of title, such title cannot be lost by the holder thereof by abandonment. Tarver v. Deppen, 132 Ga. 798 (7), 65 S. E. 177, 24 L. R. Ä. (N. S.) 1161. [Ed. Note.-For other cases, see Criminal Accordingly, in an action of complaint Law, Cent. Dig. §§ 3067-3071; Dec. Dig. for land, where plaintiff relied for recovery on 1156.*] prescriptive title, and the evidence in his favor tended to show that after he had acquired prescriptive title he moved away from the state, leaving a tenant in possession, and the defendants relied on prescriptive title, based on adverse possession alleged to have commenced after the departure of the plaintiff, and to have run for the prescriptive period before. the institution of the suit, and it was an issue whether the tenants residing on the prop erty were those of the plaintiff or those of the defendants, it was error requiring the grant of a new trial for the court to refuse, on writ PROVED. The evidence was sufficient to support the verdict, and there was no error in refusing to grant a new trial. Error from Superior Court, Bleckley County; E. D. Graham, Judge. Pammy Roy was convicted of crime, and brings error. Affirmed. ten request, to charge the principle above announced. [Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 66, 629-635; Dec. Dig. §§ 109, 116.*] 5. INSTRUCTIONS. COV All other requests to charge were ered by the general charge, in so far as they accurately stated principles of law applicable to the case; and while certain portions of the charge, which were complained of in the motion for new trial, may not have been entirely accurate, none of them were erroneous for any reason assigned. 6. MATTERS NOT DETERMINED. As the case will be returned for another trial, no ruling will be made on the assignments of error based on the general grounds of the motion for new trial, and those which complain particularly that the verdict was contrary to the charge of the court. Error from Superior Court, Quitman County; M. C. Edwards, Judge, pro hac. Action by E. D. Callaway against J. W. Beauchamp and others. Judgment for dedefendants, and plaintiff brings error. Reversed. Smith & Miller, of Edison, for plaintiff in error. B. T. Castellow, of Cuthbert, for defendants in error. ATKINSON, J. Judgment reversed. the Justices concur. (140 Ga. 217) FELKER v. CITY OF MONROE. (Supreme Court of Georgia. July 15, 1913.) (Syllabus by the Court.) 1. EMINENT DOMAIN (§ 307*)-DAMAGES FROM CONSTRUCTION OF SEWER-NONSUIT. the line agreed upon between the plaintiff and the city. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 725-736, 741; Dec. Dig. § 271.*] Error from Superior Court, Walton County; H. C. Hammond, Judge. Action by Joseph H. Felker against the City of Monroe. Judgment for defendant, and plaintiff brings error. Reversed. Jos. H. Felker, of Monroe, for plaintiff in error. R. L. Cox, of Monroe, for defendant in error. BECK, J. Judgment reversed. All the Justices concur. (140 Ga. 249, WATTERS v. LANFORD et al. (Supreme Court of Georgia. July 16, 1913.) (Syllabus by the Court.) 1. INTERPLEADER (§ 8*)-RIGHT TO COMPEL. "Whenever a person is possessed of property or funds, or owes a debt or duty, to which more than one person lays claim, and the claims are of such a' character as to render it doubtful or dangerous for the holder to act, he may apply to equity to compel the claimants to All interplead." Civ. Code 1910, § 5471. [Ed. Note. For other cases, see Interpleader, Cent. Dig. §§ 8, 9, 11; Dec. Dig. § 8.*] 2. INTERPLEADER (§ 6*)-RIGHT TO COMPEL. Lanford brought a petition for interpleader against Andy Nolan and J. C. Watters. The petition alleged that Lanford was in possession of certain described jewelry, which he held as a mere stakeholder, having no title or interest therein, and that his possession was acquired in the following way: Nolan reported to petitioner, who was chief of the detective force in the city of Atlanta, that Watters had cheated and defrauded Nolan out of the jewelry while the two were engaged in a game of chance commonly known as a "crap game." Petitioner thereupon had Watters arrested, and he turned Watters claimed title to the jewelry, and both notified petitioner of their respective claims. Nolan sued out a possessory warrant for the jewelry against petitioner, and Watters had brought an action of trover and bail against petitioner for the jewelry. Petitioner was ready to deliver the jewelry to either Watters or Nolan, as the court might determine upon the trial under an interpleader. Upon the hearing, the evidence tended to prove the allegations of the petition. Held, that the court did not err in ordering Nolan and Watters to interplead, and in granting an interlocutory injunction restraining them from further proceeding with their respective actions against the petitioner. While the declaration in this case is inartificially drawn, and does not clearly and distinctly allege any amount of damages as the result of the taking of petitioner's property, it does in general terms allege that the plain-the jewelry over to petitioner. Both Nolan and tiff was damaged in a certain amount per annum by reason of the construction of a sewer through his land along a different route from that on the line of which he had consented for the city to construct it, and that, in consequence of the unauthorized change in the location of the sewer, plaintiff had been damaged. There was some evidence from which the jury would have been authorized to find that the city had constructed the sewer along the route not authorized in the plaintiff's agreement with the city; and, that being true, the court should not have granted a nonsuit, but should have submitted to the jury the question of damages resulting to the plaintiff. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 820-824; Dec. Dig. § 307.*] 2. EMINENT DOMAIN (§ 271*)-DAMAGES FROM CONSTRUCTION OF SEWER-DEFENSES. If, as a matter of fact, the plaintiff had consented for the city to construct a sewer upon one line through his property, the city could not altogether defeat a recovery of damages, in case they actually constructed the sewer along a different line through the plaintiff's land, although the construction of the sewer along the latter line did not cause any greater damage than if it had been constructed along [Ed. Note.-For other cases, see Interpleader, Cent. Dig. & 6; Dec. Dig. § 6.*] 3. INTERPLEADER (§ 6*)-RIGHT TO COMPEL. Even if Nolan, under the facts of the case, could not maintain his possessory warrant, this of itself did not furnish a good reason why the interpleader should not have been granted, as Nolan might bring an action of trover against Lanford for the recovery of the jewelry, after failing in the possessory warrant proceeding. [Ed. Note. For other cases, see Interpleader, Cent. Dig. § 6; Dec. Dig. § 6.*] |