31 Ga. 203 | Ga. | 1860
By the Court.
delivering the opinion.
There is one question in this case that has not been made or argued, and it is too important for us to pass upon until it is both made and argued, and that is, conceding that the interest which Mrs. Thrash, the plaintiff, did take under the 6th item of her father’s will, was for her separate use, and! to the exclusion of her husband, what was that interest?' Was it a life estate in the negroes — the whole title, or a joint interest with her children ? This is a very important inquiry, and a very necessary one, for a proper settlement of this case.
The 5th and 6th items are: “5th. I give and bequeath unto my son-in-law, John Thrash, the sum of five dollars, and no more, of my estate, both real and personal, for his full share.
“6th. I will that my beloved daughter, Mary B. Strozier, now Mary B. Thrash, that she shall keep the negroes she has now in possession for her only use, and for the use of the lawful heirs of her body, during life.”
Now, whether Mrs. Thrash took a life estate in these negroes for life, with remainder to the heirs of her body, and consequently the whole title, or whether she took an interest in the negroes in common, or jointly with her children, she did certainly take some interest — whether to be enjoyed as a whole or jointly with others — the terms of the will vested that interest to her separate use, and to the exclusion of the husband. It is to her only use. How much stronger could-the terms, “to her sole and separate use,” have been? How the more restrictive? We can not see. But the will goes farther, and gives specially to the husband five dollars, and declares that he shall have no more of the estate, both real and personal. Now, if he takes the wife’s share of the estate under the will, the express provision of the will is defeated-The estate given to her, then, being to her separate use and to the exclusion of her husband, she was entitled to recover from the defendant in this action, to the extent only of that interest, whether great or small — -and the nonsuit ought not to have been granted.
Whereupon, it is considered and adjuged by the Court, that the judgment of the Court below be reversed, upon the ground that the Court 'erred in awarding a nonsuit.
