Horton v. Mercier

31 Ga. 225 | Ga. | 1860

By the Court.

Eumpkin, J.,

delivering the opinion.

Jeremiah Horton, deceased, bequeathed by his will a considerable estate to his wife and children, and directed, amongst other things, that certain portions of his property, which he specified, should be, by his executors, settled in trust upon his married daughters — Mrs. Thomas Mereier being one of them. By the consent and co-operation of the executors, Thomas Mereier, the son-in-law, was duly appointed by the Court trustee for his wife and children; and under and by virtue of this appointment, he received from the executors upwards of $1,800, and then filed his bill to recover the balance in their hands of the trust property coming to his wife and children, which the jury have found to amount to $1,100, and more.

The executors, under Stubb’s Act, passed December, 1857, (Pamphlet, p. 106), filed their answer in the nature of a cross bill, suggesting that, by the fifth item of his will, Jeremiah Horton had given certain negroes — then in the possession of Thomas Mereier- — -to his wife and children, and alleging that Thomas Mereier was claiming these negroes as his own, by virtue of a gift made by the testator -long prior to his death.

The executors insist that the will'presents a case of election, and that before Thomas Mereier is permitted to recover the balance of the trust money in their hands, that he shall be compelled, by some writing, to make known that he holds the negroes, already in his possession, as' a part of the trust estate of his wife and children. They, further, express an apprehension that, inasmuch as they consented to the appointment of Thomas Mereier as trustee, and paid him over a part of the trust fund; that if it should turn out that the slaves mentioned in the fifth item of the will, belonged to the wife and children, and that they should be wasted, and that they, the executors, took no steps to protect the rights and interests of the children, they would make themselves personally liable.

An answer was put in by Thomas Mereier to the answer of the executors, in the nature of a cross bill, which was excepted to for insufficiency, and upon argument upon the exceptions, the Court held, there was no need for an answer at all, for the reason that the executors had no right to interfere in the matter.

And this, by the way, presents a case for the construction of the Act of 1857, and for the establishment of the practice under it. The statute does not prescribe what shall be done, provided there be no equity in the case, made by the answer in the nature of a cross bill. Shall it be demurred to? or shall the original complainant, now a quasi defendant, refuse to answer ?

Having no respect for forms, myself, I look upon it as quite an immaterial matter. At any rate, we see no reason for overruling the course pursued by our Brother Bull. Like myself, he always looks to the substance of things, disregarding the shadow.

The question presented is: Was this a case of election ?

Much authority was on hand to discuss this doctrine of election. No reference, however, was made to McGinnis vs. McGinnis (1 Kelly, 496), where this doctrine is fully treated.

Election is of two kinds — positive and constructive. If two legacies are left in the alternative to the same legatee, he must elect which of the two he will take. He is not allowed to claim both. But there are also cases of constructive election, where the taking of one thing would be inconsistent with the idea of taking another. The Courts look to the intention of the author of the instrument. This intention is supposed to extend to the whole instrument; and that some part of it would be frustrated, if the whole is not carried out. The principle goes further, and holds that, by taking a benefit under the instrument, you affirm the whole, and agree to submit to the burdens which it imposes.

Apply these tests to the case under consideration. Suppose the wife and children of Mercier never get the property attempted to be disposed of by Jeremiah Horton, by the fifth item of his will, his intention' is neither marred nor frustrated, as to his general disposito-ry scheme. They still take, in common with all the other children, their equal share or portion of all the property, in which a trust was created, there being no trust declared by the will as to the property contained in the fifth item. Had the testator known that Mercier would claim these fifth item negroes as his own, there is no> reason to suppose that he could have given any more of his estate to Mercier’s family. They are made equal participants with the rest in all the residue of his estate.

And, then, what benefit does Mercier take that should require him to renounce his claim to the fifth item property? None whatever. He was not nominated trustee by the will. Suppose some one else had been appointed — as anybody else might have been — what, then, would have become of this question of election? That trustee would have claimed what Mercier is contending for, and Mereier would not have been heard, from at all. He would simply have retained possession of the property which he already holds, leaving the trustee to prosecute the rights of his wife and children. He being trustee, does not alter the legal view of the question. In truth, the executors are seeking to make a case of election, not under the will- — -where alone it can arise — but outside of the will, which can not be done.

If the executors feel it to be their duty to attempt to recover the fifth item negroes, either as executors of Jeremiah Horton, or next friend or guardian of the children, let them do so. Suit may be immediately instituted and the remedy at law is fully adequate and complete to try the titles to the fifth item property.

JUDGMENT.

Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be affirmed.