Wikle v. Woolley, 81 Ga. 106

Wikle v. Woolley

81 Ga. 106 | Ga. | 1888

Bleckley, Chief Justice.

The sole question argued before us was, whether the minor, who is the beneficial plaintiff in error in this case, is entitled, under the provisions of his mother’s will, to have arrearages which have accumulated, or are said to have accumulated in his favor, on account of his not receiving past support and maintenance and education out of the mother’s estate, — whether he is entitled to have arrearages allowed him in the distribution or division of the corpus of the estate when it shall take place in the future, under the decree yet to be made in this case or in some other way? The scheme of the will evidently contemplated that the children of the testatrix, while members of the family, whether minors or adult, should have maintenance and support out of the estate; and those to whom education or further education was appropriate, whether minors or adult, would be entitled to be educated out of the estate. We think the will does not contemplate furnishing support (much less education) to adult children after their separation from the family; but if they remain members of the family, although they might have passed their *118minority, there would seem to be no reason on the face of the will why they should not share in the support enjoyed by the family; for not only were the children to be supported, but the father also; and it seems to contemplate the keeping up of the estate, under the superintendence and management of the father, for the joint benefit of himself and his children who might remain members of the family. After that membership ceased on the part of any of them and they went out into the world to reside elsewhere, we think they would not be entitled to expect any support from this source.

1. If the facts had remained substantially as the testatrix contemplated them, there would have been no question as to a proper and literal execution of this will; but on account of unforeseen and unexpected circumstances, -a literal execution of it became impracticable. Only some approximation could be made to an execution of it. One circumstance that frustrated the scheme was, that debts came against this estate which had to be satisfied out of it, — not the debts of the testatrix, but the debts of her husband existing at the time he had conveyed the property to her. Another circumstance that frustrated the scheme was, that the husband ceased to be entitled to the management of the estate. By some interposition, through litigation and the appointment of a receiver, he was deprived of his control over the estate, and over the application of it for himself and the members of his family. These two things rendered it impracticable to carry out the intention of the testatrix. It became absolutely impossible to administer her will as she intended that it should be administered ; and all that a court can do is to make some approximation to the substantial scheme which she has enunciated. *119"Whether the debts should have been discharged out of the corpus or income was a matter of some difficulty, no doubt, for any court to determine. The agencies and instrumentalities employed by the court to investigate the matter and settle the question, held that they were properly discharged out of the income. Now, if they had been thrown upon the corpus when they were paid, there is no certainty that there would have been any income; and there is no way to tell how much the income which would have accrued and been applicable to this minor’s education and support, would have amounted to had the corpus been diminished to the extent of the encumbrances. We are unwilling, unless we could determine the matter better than the agencies employed by the court below, to interfere with that determination.

2. According to this will, it never was contemplated that, as matter of strict legal right, any debt should arise in favor of one beneficiary of the estate against another, payable out of income or corpus. It is certain that it never was in the contemplation of the testatrix that any one of her children, entitled to education and support, would have a debt against the estate or against the other children, arising from not enjoying that education and support; and it will be observed that here the claim is in the nature of a debt asserted by one of these beneficiaries against the others. We can see with a distinct vision, that it never was in the contemplation of Mrs. Roper, the testatrix, that any such result should follow from her testamentary scheme.

3. This minor was entitled to maintenance from two sources: first from his father, and secondly from his mother’s estate. He has had it from one of them; and having enjoyed it from the father, he now comes for compensation for missing it from the mother’s estate, and claims in the nature of a creditor on account of income *120having been applied to the discharge of encumbrances. He says, or his friends say for him, that this income ought not to have discharged the whole of the encumbrances; at most that it ought only to have contributed. Indeed, it is contended that the corpus was chargeable altogether ; but if not, it is said that both ought to contribute. We think that as he has had his support from one ot the sources from which he was entitled to have it, he cannot claim any other support, or any compensation for missing it out of his mother’s estate. I mean he cannot claim it as matter of strict law. If the court below, in endeavoring to approximate the testamentary scheme, had allowed it, we might have acquiesced; but it was somewhat discretionary with the court, and those who represented the court in the adjudication of these matters, to make the approximation according to their own judgment.

There is a presumption in favor of adjudications when under review that they are correct; and the burden of showing error is upon the plaintiff in error, the party who asserts it. In this ease the error, if any, is not within the field of observation, and it is more on that account than from any distinct discernment that the judgment was in itself faultless, that we affirm it.

Judgment affirmed.