Hawthorn v. Kelly

30 Ga. 965

• Court: Supreme Court of Georgia
• Decided: June 15, 1860
• Status: Published

Opinion

By the Court.

Stephens, J.,

delivering the opinion.

We think the ne exeat ought to have been dissolved in this case, because we do not think the complainants are remainder-men in the whole property, as claimed in the bill. It is not very clear from this deed that the parents were intended to take any beneficial interest at all, and we think they were certainly not intended to take more than a joint estate with the children during the lifetime of the longest liver of the two parents, with remainder in fee to the children. On the supposition that the parents take no beneficial interest, then they were mere trustees for the children, and as there was no longer any purpose to be served after all the children had ceased to be minors, the trust ceased, and the children became entitled, and are now entitled, to maintain trover for the whole of the property, and to have bail in the action in case of danger, as alleged in this bill, of the property being removed. On the supposition of a joint estate in the parents and children during the life of the longest liver of the parents, the children are entitled to a partition of the property, leaving the surviving parent a life-estate in one share of it, together with an account of the past profits of the joint life-estate. If, after such partition, the remainder interest of the children in the part falling to their mother should be endangered, they would undoubtedly be entitled to a ne exeat as to that part; but the probability is, that the partition, as the matter now stands, would remove all danger. We incline to think the deed creates an estate of the latter description.

J udgment reversed.