Poythress v. Poythress

16 Ga. 406

• Court: Supreme Court of Georgia
• Decided: August 15, 1854
• Docket: No. 38
• Status: Published

Opinion

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] The only question in this case is, not whether another trustee should be substituted in the place of the one designated by the will, but whether, from the case made by the bill, a receiver should be appointed ad interim ?

The only ground upon which this could be done, is, that the trust estate is likely to be wasted before the termination of the litigation; so that ultimate injury will accrue to the complainant. He, himself, does not, and we apprehend would not, swear that he fears any such result.

[2.] Whether or not Russell K. Poythress is a suitable person to execute the trust devolved upon him by the will of his deceased father, has nothing to do with the interlocutory issue, respecting the appointment of a receiver. The habits of the trustee — his treatment of the cestui que trust, will all be proper matters of inquiry and proof, upon the final trial of the bill. I repeat, the only question now is, is the trust fund likely to be squandered, during the short time that may intervene before-the hearing, so as not to be accessible, to answer the decree which may be rendered in the premises ? Considering the personal responsibility of the trustee, is such a result likely to occur ?

It is not alleged that he has gambled off any negro or note-belonging to William B. Poythress, nor even one of Ms own. And the Court below adjudged, that the fact that the defendant played cards and billiards, and frequented the grog-shops, was not, of itself, sufficient to justify the exercise of the extraordinary power invoked on this occasion. And however reprehensible such habits and practices may be, we cannot say that this was such a flagrant abuse of the Judge’s discretion, as to demand the intervention of this Court.