68 Ga. 402 | Ga. | 1882
At the September term, 1876, of the superior court of Newton county, D. H. Ansley, as trustee for his wife and children, presented a petition to the court, alleging that the trust estate was indebted to certain named creditors for necessaries furnished for the support of the cestui que trusts, and having no means except eight hundred and fourteen acres of land wherewith to pay the same, prayed an order for the sale of so much thereof as might be necessary to pay the said debts. Other matters touching the said trust estate were included in said petition, but nothing material to the questions in issue here. To this petition Mrs. S. A. Ansley was a party, she being one of the cestui que trusts, and expressed her consent to said sale in writing. A guardian ad litem was appointed for the minor children, who accepted the trust, and with full knowledge of all the facts, consented and agreed to the said sale, and asked that the prayer of the trustee be granted. In addition to these parties, the heirs of the original grantor in the deed, who in a remote contingency might inherit this land in remainder, were also made parties, and assented and prayed that the sale might be allowed.
To this petition, and as a part of the proceedings thereof, was added a list of the creditors, with the amounts due to each for the necessaries so furnished for the support of the said cestui que trusts, and for whose benefit the sale was to be made.
The foregoing decree having been obtained in 1876, and the said trustee having failed to comply with the same, this bill was filed to enforce its execution. The defendants, by their answer, admitted all the facts charged in the bill, except that the debts set forth in the original bill or petition were contracted for the benefit of the trust estate ; this they denied ; and they further set up the fact that another child had been born to Mrs. S. A. Ansley since the rendition of the decree.
The parties submitted the cause to the chancellor, boton the law and facts, who found for the complainants, and decreed, that the said trustee proceed to sell the land as directed.by the decree of 1876, and that he pay over the proceeds to the creditors.
To this finding and decree the defendants excepted, making two assignments of error:
(1.) That the court rejected Ansley as a witness to prove that the debts set out in the petition filed by him for the order to sell this land were not the debts of the trust estate, but were his individual debts.
(2.) That the decree was unauthorized and illegal.
The witness was properly rejected.
In so far as the rights of the after-born child are concerned, the question was ruled in the case of Dean, executor, vs. The Central Cotton Press Company, February term, 1880.
Judgment affirmed.