110 Ga. 549 | Ga. | 1900
This was an action brought in Catoosa superior court by Susan C. Bowdrie against W. IT. Payne and Gr. W. Thomas, as trustees for the plaintiff in the suit. Briefly stated, the petition alleged, that certain sums of money had been received by the defendants as trustees of petitioner, and that they had failed to pay over the same to her, which they were authorized and required to do by virtue of a decree of the superior court of Catoosa county in the year 1885, upon a suit brought by her against W. IT. Payne, and her other-brothers and sisters, who were, .under the will of her father, Thomas J. Payne, to-have the trust fund in case of petitioner’s death without issue; she alleging in said action that all her brothers and sisters had released to her their contingent interest in said fund, and' that W. H. Payne was willing that the same be paid to her in case it could be done under the releases aforesaid. The defendants in that case were duly served, and, upon hearing the evidence, the chancellor decreed, in effect, that the contingent interest should be vested absolutely in petitioner. The petition in the present-case further alleged that it was claimed by the defendant Thomas that he had resigned from his trusteeship in the year 1883, and settled for all the funds he had received as trustee with his cotrustee Payne; and that, whether or not this was true, it was the duty of Payne to force a settlement with Thomas, and in either event he was liable for the amount in Thomas’s hands. To this petition W. H. Payne filed a demurrer on the ground that the petition shows upon its face plaintiff’s cause of action, if she ever had any, is barred by the statute, fourteen years hav
The record substantially discloses the following facts: Thomas J. Payne died leaving a will, appointing W, H. Payne and G. W. Thomas his executors, and directing that, after collecting all debts and demands due testator, and after paying his wife a certain sum, the remainder should be divided equally among his children, to wit, W. IT. Payne, A. J. Payne, Arthur Payne, M. V. Ward, Mary F. Thomas, and Susan 0. Bowdrie. He also in the will directed that certain land be sold as soon as the interest of his wife therein terminated under a deed to her, and that the proceeds be divided in the same way as the money above mentioned. The will stipulated, as to the bequests made to Susan C. Bowdrie, that her interest, in the property was subject to the restrictions and limitations named as follows: “ to be held by my executors in trust and by them loaned out, and the interest arising therefrom be paid her, it being my desire that this fund be held by them for her use and benefit, and that her present husband or any of his relations shall never have any interest in or control of said funds; and in the event that the said Susan C. Bowdrie should die without children in life, then the amount hereby willed to her in this fund be, by my executors, equally divided among my other children then in life, or their children then in life.” The following receipt was read in evidence by plaintiff’s counsel:
“ $306.09-100! Received of G. W. Thomas, trustee for Susan C. Bowdrie, on note for $273.87-100 on W. E. Johnston and ■J. H. Johnston, principals, and A. T. Hackett, security, dated March 25th, 1879, payable to G. W. Thomas and W. IT. Payne, trustee for Susan C. Bowdrie, interest paid on same for two years, also the sum- of $32.22-100 cash, funds of said trusteeship,*552 turned over to me as sole trustee by said Thomas, former cdtrustee. This December 10, 1883.
[Signed] W. IT. Payne, Trustee for Susan C. Bowdrie.”
There was also introduced in evidence by plaintiff the bill above referred to, filed by Susan C. Bowdrie against A. J. Payne, Arthur Payne, Mary P. Thomas, M. V. Ward, and W. H. Payne, in Catoosa superior court, on July 10, 1884. This bill brought by Mrs. Bowdrie set forth the will of Thomas J. Payne; admitted that the property therein given to ofatrix was limited to a life-estate, with remainder to her brothers and sisters, should she die leaving no children surviving her; and alleged that all her brothers and sisters, except W. II. Payne, had conveyed to her all their contingent interest in the property devised to her, and that W. II. Payne had expressed himself willing to assign his contingent interest therein. Copies of the assignments or transfers were attached to the bill. The bill also alleged that G. W. Thomas, one of the trustees named in the will to hold the portion of the estate given to her, had resigned his trust, and that the trust fund had been turned over to the other trustee, W. II. Payne. It was insisted that, under the laws of Georgia, she was entitled to receive all the trust fund, with the permission of said W. II. Payne, and, if he declined to consent, at least four fifths of the fund. W. II. Payne was willing to turn the fund over to oratrix if he was allowed, under the law, to do so, but desired the decision of the court whether, under the facts and law applicable thereto, he would be safe in so doing. Service of this bill was acknowledged by all the parties named, including W. II. Payne. The following decree was rendered thereon: “The foregoing bill having been duly served and the allegations therein being-admitted to be true, and the trustee W. II. Payne, who also has a remainder interest in the property devised, expressing his willingness to relinquish his contingent interest, it is therefore decreed that the said W. H. Payne, after deducting such amount as may be necessary to pay any cost to the ordinary for dismission as trustee, and his commission as trustee should he claim any, that he pay over to complainant, and her receipt shall be an acquittal to him, and the complainant pay the cost of this bill. February term, 1885. [Signed] J. C. Fain, J. S. C. C. C. ”
After the introduction of the evidence by all the parties, the
Judgment affirmed.