129 Ga. 411 | Ga. | 1907
B. J. and B. E. Camp sought to enjoin the A. G. Gar-butt Lumber Company from cutting and removing the timber from lot of land number 90 in the 16th district of originally Irwin, now Echols county.- The writ of injunction was refused, and the plaintiffs excepted. On the interlocutory'hearing it was made to appear that this particular lot of land was granted to Benjamin S. Jordan. In 1860 the administrator of Jordan conveyed the land to Skelton Napier, but no order of court authorizing the sale was exhibited to the judge. It was shown that Emily E. Jordan and Leonidas Jordan were the sole heirs at law of B. S. Jordan, and these heirs conveyed by deed, in 1871, land lot number 90 to John T. Napier, executor of the last will and testament of Skelton Napier. Skelton Napier died, leaving a widow and seven children, among whom was John T. Napier. Plaintiffs also introduced a certified copy of the will of Skelton Napier, dated in 1852, and the codicil thereto purporting to have been executed in 1856. In the will the testator directed that all his property both real and personal (save that devised to his wife, the Spivey plantation, and his negro slaves) be sold by his executor, and the proceeds “be divided share and share alike between my wife and each of my children, that is to say, my wife and each of my children having an equal share,” etc. The will further provided that the devise to his son William “be and is hereby invested in trust to my sons John T. Napier and Thomas N. Napier as trustees, and not otherwise, for the sole and separate use of said William and his children. . . The property to remain in trust as aforesaid during the natural life of said William, and then go to his children, or on failure of children to his heirs by consanguinity.” It was also stipulated in the will that the devise to the testator’s daughters “be held in trust for them and their children, should there be any,” etc. No trustee for the daughters was named in the will, nor was it shown that they had children at the testator’s death. The plaintiffs also introduced a certified eopj of “the agreement of the heirs of the estate of Skelton Napier, late of Bibb County, ,Ga., deceased, to divide the estate of the said Skelton Napier, deceased^ between the heirs of said estate, as it all now appears of record in this [ordinary’s] office in Book of Be-turns kl No. 2, folio 509.” The general scheme of this written agreement was to divide the estate in kind, and the wild land was
Judgment reversed.