70 Ga. 572 | Ga. | 1883
James Hilliard, by item eight of his will (which after his death was duly proved and admitted to record), bequeathed to Henry G. Turner, in trust for testator’s daughter, Arabella B., certain houses and other real estate situate in the town of Quitman, together with household and kitchen furniture, personal trinkets and attire, and a certain sum of money, to be held for her benefit, and “ at her death to go to her children, and if she should die without children,” then the property was to go to testator’s “ heirs at law.” The will was executed and proved in 1872. Arabella B. Hilliard married L. F. Haddock, and soon after her marriage, Turner resigned the trusteeship of the property
Arabella B. Haddock died, leaving no child or children, :and a portion of the heirs of James Hilliard who survived, .and certain persons to whom a portion of the heirs had . assigned their interest in this property, held in trust for her during her life, brought suit on the equity side of Brooks superior court against L. E. Haddock for the recovery of the property thus held by him in trust. Upon the trial of this equity case, the complainants had a verdict, and on that verdict and in accordance therewith, a decree was rendered and signed on the 9th day of November, 1881, by which they recovered all the real estate mentioned in the 8th item of James Hilliard’s will and two hundred dollars, as rent accrued since the death of Arabella B. Haddock. The real property recovered by this decree was turned over to the complainants by L. E. Haddoek, the trustee, and failing to pay the money thereby found against him, execution issued for the amount, on which the sheriff returned nulla lona; and thereupon the ordinary, for the use of the plaintiffs in said execution, instituted a suit against said L. E. Haddock, then of Houston, and A. J. Rountree and William H. Stanley, of Brooks county, in the superior court of said last mentioned county, upon their bond,-executed on Haddock’s appointment as trustee, for the recovery of the unpaid portion of the said decree. The defendants to this last suit appeared at the
(1.) The superior court of Brooks county has no jurisdiction in the case.
(2.) The superior court of Houston county has jurisdiction.
(3.) Courts of common law have no jurisdiction in such cases.
(4.) Courts of equity have jurisdiction over trustees and their bondsmen.
(5.) The laws of Georgia give no right of action against trustees and their bondsmen.
(6.) Because such bonds are given only for the benefit of the cestui que trust and her heirs.
(7.) Plaintiffs have no right of action upon the bond.
(8.) Bondsmen are not liable for rents, issues and profits after the death of life tenant.
(9.) Because, as shown by plaintiff’s declaration, said cause has been fully adjudicated.
(10.) Plaintiffs are not the heirs or successors of Arabella B. Haddock, and do not allege themselves to be such, but are the heirs of James Hilliard, as they allege.
This demurrer was overruled by the court, and the defendants filed a bill of exceptions pendente lite to the judgment overruling the same; thereupon they pleaded the general issue and a special defence on behalf of the sureties, that they were released, because, after their liability had accrued, plaintiffs turned over to Haddock divers articles of personal property embraced in the 8th item of James Hilliard’s will, and valued at seven hundred dollars. This last plea was, on motion, stricken by the court. They then went to trial upon the general issue, and certain special pleas containing the substance of the matters set forth in the demurrer which had been overruled, and a further plea was also filed, that by the terms of the 8th item of James Hilliard’s will, an estate tail was created in Arabella to the property thereby bequeathed; and this was likewise
Judgment was entered up on this verdict, and a motion was made for a new trial upon the usual grounds, that the verdict was contrary tolaw and evidence, and that the court committed error in relation to the several rulings above specified. This motion was overruled and a new trial refused ; whereupon the defendants brought the case here by bill of exceptions.
In the argument here, several of the errors assigned were abandoned, as those relating to the jurisdiction of the superior courts of Brooks and Houston counties.
Judgment affirmed.