51 Ga. 40 | Ga. | 1874
The bill in this cause was filed by John Cunningham, executor of the will of John B. Gallie, against William Rogers, trustee under the marriage settlement of Joseph Carruthers and Jane A., his wife, and against Joseph 8. Carruthers, Elizabeth Carruthers, Ella Carruthers, and Janet Carruthers, a minor, returnable to the January term, 1873, of the Superior Court of Chatham county.
The bill alleged in substance as follows: That on Decem 23, 1815, a marriage settlement was made and entered into between Joseph Carruthers and Jane A. Stutz, both of said county of Chatham, whereby certain property of said Jane A. was conveyed to trustees therein named for the sole and separate use of the said Jane A., until the marriage, and after the marriage for her sole and separate use during her life, and thereafter for the use, benefit and behoof of any child or children that she, the said 'Jane A., might have by the said Joseph Carruthers, share aud share alike, their heirs and assigns forever; that the said marriage took place, and that the-said Joseph Carruthers afterwards died, leaving him surviving his widow, the said Jane A., and three children of said marriage viz.: the said Joseph S. Carruthers, and James Carruthers and Janet Carruthers, the two latter now deceased ; that the said James Carruthers died July 29,18.54, leaving a widow, the said Elizabeth Carruthers, one of the defendants, and two daughters, viz.: the said Ella and Janet, also defendants in the said' cause; that the said Janet Carruthers, the daughter of the said Jane A., was married, without a settlement, to John B..
Upon these allegations the complainant claims that Janet, the wife of John B. Gallie, was entitled, at the time of her marriage with him, to a vested estate in remainder in fee in an undivided third of the property conveyed in trust by her mother’s marriage settlement, which estate in remainder passed to the said G-allie upon his marriage, and devolved upon his executors at his death as part of the residuum of his estate, for the trusts specified in his will; and that upon the termination of the life-estate of Mrs. Jane A. Carruthers, he was entitled to receive one-third of all that remained of the property
Answers were duly filed, one by the trustee, the other by the remaining defendant, Mrs. Elizabeth Carruthers having first been appointed guardian ad litem of her minor daughter, Janet. The defendant Rogers, the trustee, admits the facts stated in the bill to be true, and submits himself to the decree of the court as to the rights of the parties, praying only to be reimbursed certain monies expended by him for the trust estate.
The other defendants also admit the facts stated to be true, but allege these additional facts, viz: That Janet Carruthers, before her marriage with Gallie, and on October 29th, 1844, was married to one Francis S. Porcher, and on that day, in consideration of the marriage, made and entered into a marriage settlement with him, whereby she conveyed to certain trustees, therein named, “all her estate, right, title, interest, property, claim and demand whatsoever, at law and in equity, being a remainder in fee in a certain proportionate share ” of, in and to, the property mentioned in her mother’s marriage settlement aforesaid, to have and to hold the said proportionate share, “ to commence in possessiori immediately after the determination of the life-estate of the said Jane A. Carruthers therein,” in trust “for the sole and separate use of the said Janet until the marriage, and then for her sole and separate use during her life, not subject to the control, management, debts or liabilities” of Porcher, “and after the death of the said Janet, then in,trust for the sole use of such children of the said marriage as should be living at the time of her death; and in ease there should be no child or children living as afore
The new facts thus stated by these defendants were admitted by the complainant, and there being thus no question of fact involved, the cause came on to be heard before the judge alone, upon the bill, answers and exhibits attached to both, during the May term of the said court, in the year 1873; and thereupon, the judge decided that the marriage settlement with Porcher was not a conveyance of Janet Carruthers’ estate in remainder to the trustees named, but only a contract for a future settlement; that her title did not, therefore, pass by that settlement, but remained in her, aijd became vested in Gallie upon his marriage with her; that, even if that were not so, Gallie became entitled, as her heir-at-law, upon her
To the whole and every part of this decision the defendants excepted.
Let the udgment of the court below be affirmed.