Blake v. Black

• Decision Date: 24 February 1890
• Citation: 11 S.E. 494,84 Ga. 392
• Parties: BLAKE v. BLACK et al.
• Court: Georgia Supreme Court

11 S.E. 494

84 Ga. 392

BLAKE v. BLACK et al.

Supreme Court of Georgia

February 24, 1890

Syllabus by the Court.

1. The chancellor had jurisdiction and power, under section 4214 of the Code, to entertain the petition of the executrix, and decree at chambers a sale of the land; the fair import of the facts, as they were presented to the chancellor, and as to which there was no issue, being that it had become impossible to carry out the will of the testator, and there being representation of the minors by a guardian ad litem and all the parties in interest consenting in writing for a decree of sale to be rendered. Possibly the jurisdiction might also be rested upon section 2327, construed in the light of sections 4221-4223; executors being trustees, and as such having title to devised realty for the purpose of using the same, or the proceeds of the same, to pay debts and legacies.

2. The question whether some of the original plaintiffs could recover unless all could, may be obviated on a future trial by amending the declaration so as to allege a several, as well as a joint, title; the title of tenants in common being technically several, rather than joint.

Error from superior court, Rockdale county; BOYNTON, Judge.

A. C McCalla and H. D. McDaniel, for plaintiff in error.

J. N Glenn and A. M. Speer, for defendants in error.

BLECKLEY C.J.

We have read the evidence, and considered it carefully, and we entertain no doubt that the court committed error in not granting a new trial on the tenth ground of the amended motion. We shall present, as briefly as may be, our reasons for this opinion.

1. Upon the facts set forth in the petition of Mrs. Bailey, construed in connection with the will of the testator, of which she was executrix, the chancellor had jurisdiction, under section 4214 of the Code, embracing the act of 1866, to decree a sale of the land, and to do this in vacation. We look to the substance of the matter, and think the proceeding was not vitiated by certain obvious errors, such as the misdescription of Mrs. Bailey as trustee; the will itself, which was exhibited to the chancellor, showing that she was not a trustee otherwise than by virtue of her office as executrix. She ought to have been described simply as executrix. This same mistake occurs in the deed which she afterwards made to the purchaser. But we think it affects the validity of the deed no more than it did the validity of the petition and the decree rendered thereon. All the parties were before the chancellor, and consented to the decree for a sale. All of them except two were of full age, and these two were duly represented by a guardian ad litem, who joined in the consent. The petition, if untrue, should have been denied by the adult children for themselves, and by the guardian for the minors. If they had not intended to admit its truth, they should not have signed any instrument expressing their assent to the granting of the decree prayed for. The chancellor was fully warranted in treating the representations in the petition as absolutely true, and, so treating them, they made a case of impossibility on the part of the executrix to carry out the will. The testator directed that Mrs. Bailey, his executrix, should carry out the will by managing in such manner as he might or should do, if he were personally present at the doing of the same, during her widowhood. He directed that his two sons should each have a horse and saddle when they became of age, and each of his five daughters a bed and furniture and a milch cow. The residue of his estate was to be equally divided among all his children and his wife. At the time the decree was applied for, some of these special legacies remained unpaid, and two of the children were not yet of age. The testator evidently contemplated that there would be means whereby to rear the children to majority and discharge the special legacies without making sale of the land. He did not anticipate that his widow would become incapable of managing so large a place, nor did he foresee that any of the proceeds of a sale of the land would be needed, either to pay debts, or to provide the horses, saddles, cows, beds, and furniture requisite to supply the outfit for the children as the...