Carroll v. Carroll

25 Ga. 260

• Court: Supreme Court of Georgia
• Decided: March 15, 1858
• Status: Published

Opinion

By the Court.

McDonald, J.

delivering the opinion.

The presiding Judge in the Court below sustained the demurrer, and dismissed the bill on the ground “that the clause of the will, on which the bill is filed conevys an estate tail.” We do not disagree with the Court below in regard to the kind of estate created, or attempted to be created by this will. The testator intended to give to his daughter and her bodily heirs, the negroes which she derived from his estate; and to settle her interest on her, separate and apart from her husband, He intended that she should take a life estate only. The limitation over being void, however, her life estate in the negroes was enlarged into an absolute estate. But the enlargement of her estate, did not destroy her right to maintain the trust for her sole use and benefit, and to enforce this prohibition, in the will, that the property should not he sold for any other cause or purpose. The husband who has sold one of the negroes should be held to account for his value and to find sureties against the sale or appropriation of the proceeds of the hire or labor of the others, otherwise than is provided for in said will, and the bill ought to have been retained for that purpose.

Judgment reversed.