25 Ga. 549 | Ga. | 1858
By the Court.
delivering the opinion.
The period having arrived at which the testator’s estate was to be distributed, the complainants file their bill claiming to be entitled, as heirs at law of the testator, to distributive shares of parts of his estate, which they insist do not pass by the will. One of the testator’s children, Philip Walker, named as a legatee in one clause of the will, died in the lifetime of the testator, leaving no issue; his legacy lapsed, they allege, and that they are entitled to a part of that lapsed legacy.
The bill was demurred to on the grounds set forth in the statement of the case. The presiding Judge in the Court below overruled the demurrer, and error is assigned on his judgment.
The fifth item gives directions as to the surplus of his. crops, after supporting his family. It is to be loaned at interest until the division of his estate. By the sixth item the wife is directed to dispose of the proceeds of the sale of the crops as she may think best, so that she might be able to assist any child who may have been unfortunate. The object of the testator in giving this power to the wife, is expressed by him. If the wife should not execute the power during her life, this fund will fall into the estate at her death, and be then distributable among the children, and representatives of children, as property undisposed of by the will.
The lands and notes are not disposed of by the will, except the notes given for the crops, and notes, if notes were taken, for the stock when sold.
The Act of 1828 declares, that the executors shall hold it as trustees for the next of kin of the deceased. Cobb Big. 327.
If a testator dies intestate purposely, as to part of his estate, and he gives parts of his estate to children who would be distributees of his estate if he had died intestate as to his whole property, and who would share with other children to whom nothing is given by the will, it must be presumed that he intended to give some of his children an advantage over the rest. We should disappoint his purpose, and indeed, make a will for him, if wo were to hold that the legatees should account for what they received under the will, before they could share in the undisposed part of the estate. It is seen that we do not affirm all the rulings of the presiding Judge in the Court below, but we affirm his judgment in overruling the demurrer to the complainants’ bill.
Judgment affirmed.