Askew v. Nolan

23 Ga. 509

• Court: Supreme Court of Georgia
• Decided: November 15, 1857
• Status: Published

Opinion

By the Court —

McDonald, J.

delivering the opinion.

In addition to the foregoing statement, that the judgment of this Court may be better understood, it is proper to say, that, by the fourth clause of his will, the testator directed the balance of his property, both real and personal, not given off In special bequests, to be sold, and five thousand dollars of the sum arising from the sale, to be loaned at interest, and the interest to be appropriated to the support of his wife during her life, and at her death the said sum be directed to be divided amongst his children, in the manner prescribed in the will. The share intended for his daughter, Virginia B. Askew, he gave in trust, for her use and benefit, to Julius C-Alford and Thad. B. Reese.

The excess of the money over the $5000, arising from the sale of his property, as above directed, he willed to be equal-131 divided among his children, the shares of Virginia B. Askew, &c., &c., he desired should be paid in to the trustees thereinbefore appointed for them, and in the event of all or either of them dying without child or grand-child, to all return as the property thereinbefore given, and to be equally divided among his surviving children, but if they leave issue, then to remain in trust for them, as the property thereinbefore given.

Virginia B. Askew had an only daughter, Sarah, who intermarried with George M. Nolan. She was her only child. She had one child, Julius E. M. Nolan, the complainant, and after having attained the age of twenty-one years she died in the lifetime of her mother, Virginia B. Askew. The slaves and their increase were conveyed in the deed of the 14th of January, 1835. The only reference to that deed in the will of the testator, is to be found in the codicil. By the codicil, the testator exercises the power reserved by him in the deed, so far as to substitute other trustees for those therein named. It was competent for him to reserve this power. Shep. Tench. 524. By the codicil he conveys in trust to his sons, the property theretofore conveyed in trust to Julius C. Alford and T. B. Reese, for the purposes specified in said will, and as set forth in a deed of trust theretofore made to said Alford and Reese. The trusts declared by the deed and by the will are different. The trust in the deed which conveys the negroes, is for, and for the use, support, benefit, maintenance and enjoyment of his daughter and her children. If his daughter should die, leaving no child or children, or having a child or children, if it should die in minority, the trust was to cease; and in that event the property was given over. By the trust in the will the property or money was given over if she died without a child or grand-child. The property conveyed by the deed is to be held by the trustees for the purposes as set forth in the deed, and the money conveyed in the will is to be held for the purposes specified in the will. According to the deed, the trust thereby created, was not to cease, unless his daughter, Mrs. Askew, died, leaving no child, or having had a child, that child had died in its minority. She had a child, whom she survived, but that child did not die in minority. She attained the age of twenty-one years. The estate passed by the deed, therefore, did not cease. It became complete and absolute in the daughter and her only child, on that child’s attaining the age of twenty-one years. At that time they were both, mother and daughter, covert, and the marital rights of their husbands respectively attached to their respective interests conveyed in the deed.

We think that the Court below was right in overruling the demurrer, and that the bill should be retained for the purpose of enforcing the rights of Nolan, as administrator of his deceased wife, to her interest in the slaves and their increase conveyed in the deed.

The counsel for plaintiff in error abandoned the first ground in his assignment of errors.

Judgment affirmed,