Barksdale v. Smith

• Decision Date: 30 November 1860
• Parties: BARKSDALE et al. vs. SMITH, BELL & CO.
• Court: Georgia Supreme Court

31 Ga. 671

BARKSDALE et al. vs. SMITH, BELL & CO.

Supreme Court of the State of Georgia

NOVEMBER TERM, 1860.

Assumpsit, in Wilkes Superior Court. Tried before Judge Thomas, at the September Term, 1860.

The record in this case presents the following facts and questions, to wit:

Mrs. Sarah Stokes died testate. Amongst other things, she directed, in her will, that certain property should be sold, and that the funds arising therefrom "be put at interest, the said interest to be applied to the support and education of her: grandson, John A. Stokes, and the support of his father,. Armstead Stokes, during his natural life, and if the said John A. Stokes should survive his father, then the whole to go to, and vest in, him and his heirs forever: provided, nevertheless, that if the said John A. Stokes should die before he arrives at the age of twenty-one years, or without heirs, then the interest aforesaid shall be applied to the maintenance and support of his father, Armstead T. Stokes, during his life, and after his death, the principal, with the interest, if any, to be equally divided" amongst other named legatees.

The will further provided that the property bequeathed by it should be for the sole and separate use and benefit of the legatees, and not subject to any debts or contracts, but to be received and managed by a trustee.

There was no trustee appointed in the will.

Nicholas G. Barksdale was duly qualified as administrator of Sarah Stokes, with the will annexed, and before any trustee was appointed, an order was drawn on, and accepted by him, of which the following is a copy:

"September 2d, 1852.

"Mr. N. G. Barksdale:

"Will please pay Smith, Bell & Co. one hundred and forty-five dollars and fifty-eight cents, my account with them for the year 1851, and this shall be your receipt for the same.

"A. T. STOKES."

On the back of the order was written the following acceptance:

"I accept the within, conditioned upon any funds over, coming into hand. N. G. BARKSDALE.

"October 7th, 1852."

N. G. Barksdale acted as administrator, with the will annexed, of Sarah Stokes, from 1848 up to the time of his death, in the latter part of the year 1856.

Thomas A. Barksdale and James H. Willis were appointed administrators of N. G. Barksdale, and continued to managethe property bequeathed by Sarah Stokes, for the support of John A. Stokes and Armstead T. Stokes, until September or October, 1857, when William M. Reese was appointed trustee for Armstead T. Stokes and John A. Stokes.

In October, 1857, Reese and the administrators of Barksdale came to a settlement, in which it was found that there was due the trustee of the Stokeses something over $7,000, which amount was subject to various demands against the Stokeses for support, etc., some of which were allowed in the settlement. These being deducted, left over $5,000, which the administrator of Barksdale paid over to Reese, the trustee.

Smith, Bell & Co. sued the administrators of...