Swann v. Garrett

71 Ga. 566

• Court: Supreme Court of Georgia
• Decided: December 4, 1883
• Status: Published

Opinions

Blandeord, Justice.

Alfred Austell died, leaving his last will and testament, ' By the ninth item or clause of said will, said testator directed that all the residue of his estate not before disposed of should be sold and converted into money by his executors, at such time and place and under such circumstances as they might deem best, and the proceeds be equally divided between his children, share and share alike. Testator left four children at his death, surviving him, three of whom, the plaintiffs in error, aré of full age, and one, Alfred Austell, Jr., who is a minor, and who is defendant in error.

The plaintiffs in error filed their bill against Alfred Austell, Jr., and Win. J. Garrett, one of the executors to said will, in which they allege that the property constituting the residue of testator’s estate, which is directed to be sold by his executors, consists of certain shares of bank stock, bonds, and interest in a certain railroad in South Carolina, etc.; that this property is very valuable, and has increased in value since the making of testator’s will, and is desirable as a permanent investment; that there are no debts to be paid, and no one is interested in this property except the legatees under the will; that it will be greatly for the interest of all parties interested, not to sell this property, but that the same be divided in kind between them, and they pray that the same be divided in kind, and for general relief. To this bill the defendant, Garrett, demurred, upon the ground that there was no .equity in the bill. The court sustained the demurrer, and dismissed the same. To this decree the complainants excepted, and this writ of error is brought to review and reverse the same.

1. Where a testator directs that his executors shall-sell certain property, and divide the proceeds between certain •named legatees, it is optional, with the legatees to elect to take either the property its.elf or the money arising from the sale of the same. Such a bequest is as much of the property itself as of the money arising from the sale of the same ; to allow the legatee to take property instead of the money .arising from the sale, is no violation of the testamentary scheme of the testator; the purpose of testator is, that the legatees, who are the objects of his bounty, shall have his property, and if this can better be accomplished by the legatees taking the property itself, rather than to have a sale of the same and taking money arising from such sale, what objection can be raised to this course ? The more valuable the bequest is, .would seem not to conflict with testator’s desires, but Would be in conformity thereto; so it cannot with any reason be said that this course would be violating or making-a new will for the testator. The question, is as to investment, not of the construction of an investment, which would be of the most benefit to the legatee, cannot possibly be considered as contrary to the testator’s wishes. So, where there are no interests except that of the legatees to be affected, they may take the property, instead of having the same sold, because the property vests absolutely in the legatees; it belongs to them upon the death of the testator, and so this court held in Adams vs. Bass, ex'r., 18 Ga., 130, and that case went much further than we are required to go in this case. In that case, the testator directed his estate to be sold by his executors, the proceeds to be invested in state bank stock, and the dividends. thereon to be equally divided, as they should be declared, between his nephews and nieces, without limitation of time, and without making further disposition of said fund. It was held that this was a bequest of the principal as well as the interest, and that the whole vested absolutely and at once in the legatees, and that it was optional with the legatees to take either the property itself or the proceeds. How much stronger is the present case before us than the one cited above! Here, the direction is to sell the property, and divide the proceeds among the legatees; there the executors were required not only to sell the property, but to make a particular investment, and to divide the proceeds of such investment between the legatees; yet the court held that the property itself belonged to the legatees, and vested in them, and they might elect to take the property, or its proceeds. And in this case we now hold that the property mentioned and devised under the ninth item vests absolutely in the legatees, and it is optional with them to take the property or its proceeds. 1 P. Williams, 130,389, 471; 1 Roper on Legacies, 547 ; 2 Jarm. on Wills, 188 note; 2 Story’s Equity, 1213, 1215 ; 16 Ala., 489.

2. A court of equity in this state has jurisdiction and power to elect for an infant legatee, situated as the minor is in this, case, where, after due inquiry, it shall appear to be for the interest and advantage..of the infant,.that he take the property itself or its proceeds. The interests of all the legatees are to be consulted, as well as that of the infant. 2 Jarm. on Wills, 188 note ; 19 Beavan, 494 ; 2 Randolph, 404 ; 16 Ala., 409; 3 Leigh, 428; Hill on Trustees, 396 ; 3 Wheaton, 578; Adams on Equity, 296 ; Pomeroy on Equity, 1213.

These authorities amply sustain the proposition announced above, but we are not left without guidance from our own statute. If this property should be sold and converted into money, then the money would have to be invested by the guardian for the infant, and he could only invest in stocks, bonds, or other securities issued by this state ; any other investment must be made under an order of the superior court. Code, §2330. So it is clear that, if this property were sold, the superior court would have power to direct an investment of the money in the identical property sold. We cannot see why, if the court has the power to direct a re-investment in these identical securities, it has not the power to say, let the present investment stand. The only thing is, will it be for the benefit and advantage of the infant ? This should be made satisfactorily to appear by the proof submitted at the hearing. This power of the court is to be exercised for the infant’s benefit. There is equity in this bill, and the court erred in dismissing the same.

Judgment reversed.

Hall, Justice, concurred, but furnished no written opinion.