Carr v. Trustees of Emory College

32 Ga. 557

• Court: Supreme Court of Georgia
• Decided: March 15, 1861
• Status: Published

Opinion

By the Court.

Lumkin, J.,

delivering the opinion.

This bill is filed by the children of William A. Carr and Susan B. Savage, by virtue of an assignment of a life-estate of Selina A. Few, in and to the property therein named, to recover forty-two shares Georgia Railroad stock, and the dividends thereon, from Emory College.

It is claimed to belong to the claimants, by the will of their grandfather. That it was bought with the proceeds of some lands in Alabama, and that these lands passed by the residuary clause in the will of the said Thomas Carr, in trust, to his daughter, Mrs. Few, and at her death to the complainants.

Emory College alleges that the Alabama lands did not pass under Thomas Carr’s will, but that his children were the direct donees of the grant made by Congress to these Jandsj after the death of Thomas Carr, and that consequently the marital rights of Colonel Ignatius A. Few, the husband of the said Selina A., attached directly in the lands and the proceeds thereof, and that he conveyed the same to Emory College. Many years ago, it seems that a bill was filed in the Superior Court of Clark county by the heirs-at-law of Thomas Carr against William A. Carr, his executor, who had sold these lands to one Robert Jameson, in Alabama, to .make him accountable for their proceeds.

The bill was demurred to and dismissed, upon what ground it does not appear.

This evidence was offered on the trial of this case, and" rejected by the Court, and we think very properly, as it did not appear upon what ground the demurrer was sustained, and there were other grounds upon which it might have been sustained, and we are clear that the parol proof of William A. Carr, the defendant in that bill, was inadmissible to supply the record in this particular.

But in the view which we take of the next point, all this is immaterial. At a subsequent period, in Clark county, William A. Carr, being the trustee of Mrs. Few, filed his bill to turn over the trust estate in his hands, to Iverson L. Graves. This bill was filed against Colonel Few and wife, and in this bill it is decreed, that the land fund, which had been vested in Georgia Railroad stock, should be transferred to the said trustee. It is immaterial, therefore, whether Colonel Few was estopped by the first bill or not, he w.as effectually so by this subsequent- proceeding, and we can not for a moment entertain the notion, that because the decree did not employ technical phraseology to create a separate estate in this stock, that it must fail, and become the absolute property of the husband. The decree would be reformed, if necessary, to make it correspond with and conform to the case made by the pleadings, and what was the true intentions of the parties.

Nor was there any thing wrong in this; on the contrary, to have suffered this grant of land from the United States to the heirs of Colonel Carr to have inured to Colonel Few, and through him to his creditors, would have been a cruel hardship. In consenting to let this fund therefore take this direction, Colonel Few did nothing more than equity would compel him to do. He would never have been allowed to get possession of this fund except upon these terms. But does all this avail the complainants ? Mrs. Few, as she had the right to do, had consented for this railroad stock to be exchanged for other property, and though this case was sent back again one hundred times, the same result would follow. Moreover she has caused Iverson L. Graves to be removed from the trusteeship, and Colonel Few to be substituted in his place, and a special jury of Newton county have sanctioned and ratified this whole proceeding. She may have been overreached. She may have yielded to her conjugal feelings, and made a hard bargain with her husband. It is what thousands have done before her, and thousands will do hereafter. So long as trust estates exist they will be controlled by husbands. It is possible—yes, probable—that in the present case, if the property received in lieu of railroad stock be what "William Few represents it, utterly worthless, Colonel Few feels justified in his conscience on account of the claim which he relinquished, as husband, to the Alabama lands. The heirs of Colonel Thomas Carr, excluding William A. Carr, the executor, sustained a great sacrifice in the premature sale of those lands, and that, too, under the executor’s title, which was not worth the paper it was written on.

Let the judgment be affirmed.