Creditors of Spicer v. Spicer

21 Ga. 200

• Court: Supreme Court of Georgia
• Decided: January 15, 1857
• Docket: No. 42; No. 43
• Status: Published

Opinion

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] The Court entertains no doubt but that the respective families of grand children of Andrew Hampton, deceased, are entitled to be supported and educated out of the property left them, up to the time of their marrying or becoming of age; at which time their parents are authorized to give off’ a portion of the property, if they see fit; otherwise to retain it during their natural lives, to be then divided. Whether the surplus over and. above the expenses of the grand children and after they are married or become of age, up to the time of distribution, was not to accumulate for their benefit, in the hands of their parents, is not so clear. I have no doubt but that such was the understanding and intention of the testator.

In the case of Spicer’s children, they are minors, and consequently may claim a support out of the emoluments of the property .in the hands of their father. In 1856, he worked eleven negroes of his own, and seven of theirs, and a ratable proportion of the money arising from, the sale of the crop of that year was $1,400 00. There are five of these minors who are the complainants in the bill, and some dozen unproductive negroés. They allege that the whole of this is needed for their maintenance, and that without it they will be left destitute, and this statement is not contradicted. We see no error in the decision of the Court, therefore, that the jury might decree them the whole of this fund. They do not go back upon the crop of 1855, by way of compelling their father to account for the income of past years, but to obtain the means of support for 1856.

[2.] As to the heirs of Andrew Y. Hampton, the main contest there is, as to the two negroes Van and Jack, five mules, a wagon and harness, some stock, provision, &c. As to the slaves, we think there is a clear equity, according to the case made by the bill. One of them is alleged to have been bought with the money received by the father of complainants from the estate of their grand father; and the other with the proceeds of the stock which came in the same manner. There is some doubt as to the mules, wagon, &c. The claim to these is put upon several grounds. If this property was purchased out of the funds given by the will, and this is one of the charges, or was placed there by the father, in lieu of the same amount of trust property used by him, then it would constitute a part of the corpus of the trust estate.

Counsel for the creditors suggest in argument, that they had no notice of the trust which encumbered this property, and insist that, inasmuch as they may have given credit upon it, it is subject to their judgments. But this case comes up upon the judgment upon demurrer; and not upon the answer showing this to have been true. But even if the fact be so, would the equity of the creditors of the father supplant that of the cestui que trust ?

Judgment affirmed.