Care v. The Tr.S Of Emory Coll.

• Decision Date: 31 March 1861
• Citation: 32 Ga. 557
• Parties: Thomas W. Care, et al,, plaintiffs in error. vs. The Trustees of Emory College, et al., defendants in error.
• Court: Georgia Supreme Court

32 Ga. 557

Thomas W. Care, et al, , plaintiffs in error. vs. The Trustees of Emory College, et al., defendants in error.

Supreme Court of the State of Georgia

MARCH TERM, 1861.

Bill in equity, in Newton Superior Court. Tried before Judge Cabaniss, at the September Term, 1860.

On the 10th of January, 1820, Thomas Carr, then of Columbia county, made his will in due form of law, which will, after his death, to-wit: on the 10th day of November, 1820, was duly proved and recorded in the Court of Ordinary of said county of Columbia.

The 9th and 11th items of the will are as follows, to-wit: " 9th. I give and bequeath unto my son, William Anthony Carr, and Colonel Nicholas Ware, in trust (and whom I constitute and appoint trustees for the purpose herein named) the following negroes, for the sole use, benefit and behoof of my lovely danghter, Selina A. Few, wife of Colonel Ignatius A. Few, viz: Lett and her children, Sarah, Lancaster, and Cornelia; also, Ben and his wife, Elsa, with their future increase—these negroes to be hired out, and the money arising from their labor be paid by my said trustees to my said daughter, Selina, free from the control of her said husband, I. A. Few.

"11th. All the rest and residue of my estate, both real andpersonal, not herein disposed of, I will, bequeath and devise in the following manner, viz: one half thereof to my grandchildren, the children of my daughter, Susan B. Ware, to them, their heirs and assigns, forever, to be equally divided amongst the whole of them, share and share alike. The other half I give and bequeath to my son William A. Carr and Colonel Nicholas Ware, in trust for the sole use and benefit of my lovely daughter, Selina A. Few, free from the control of her husband, Colonel Ignatius A. Few, to be by my aforesaid trustees vested in bank stock, or some productive fund, and the increase arising therefrom to be paid to my said daughter annually, and such other negroes as may fall to her lot and share, to be disposed of in the same manner as is prescribed for Lett and her children; and I hereby fully empower my executors, hereinafter named, to sell any part of my real estate which is not herein otherwise disposed of, for the purpose of making a division, or for raising funds for the payment of my debts, and carrying this my last will into effect; and should my said daughter, Selina A. Few, survive her said husband, Ignatius A. Few, then and in that case the trust herein created in my son William and Colonel Ware shall cease, and the property, both real and personal, so bequeathed in trust shall vest in my said daughter Selina solely, and be then delivered into her\' full possession by my said trustees: Provided nevertheless, that if my said daughter Selina die without a child or children of her body, and living at the time of her death, then and in that case the said negroes and other property, real and personal, so herein bequeathed, shall revert to my estate, and be thereafter equally divided among all the children of my son William A. Carr, and the. children of my daughter Susan B. Ware, share and share alike. I constitute and appoint my son, William A. Carr, Colonel Nicholas Ware, and my grand-son, Thomas Carr Ware, to be executors of this my last will and testament, the latter to act when he arrives at the age of eighteen years."

After the death of Thomas Carr, to-wit: in the year 1824, the Congress of the United States, passed an act declaring "that the heirs and representatives of Thomas Carr, or theirheirs and representatives, were thereby authorized and empowered to enter, under the direction of the Secretary of the Treasury, five thousand acres of land at any time within two years from the passage of the Act, in any land office of cither of the States of Mississippi or Alabama, being the amount of a grant made to him by a resolution of the Legislature of Georgia, passed in 1786."

William A. Carr, as executor of the will of Thomas Carr, entered those lands in the State of Alabama, and afterwards sold them, or a large portion of them, as the property of the estate of Thomas Carr, and the heirs general of the latter filed a bill in equity, in Clark Superior Court, against the former to compel him to account to them for the proceeds of these lands, alleging, that as the grant was made to the heirs of Thomas Carr after his death, they did not pass under his will, but vested immediately in said heirs.

William A. Carr set up a demurrer to this bill, and the record simply shows the following entry as to the disposition of the case, to-wit: " Aug., 1829. Demurrer sustained and bill dismissed."

William A. Carr acted as trustee of the property bequeathed to Mrs. Few for many years, (Col. Nicholas Ware having died,) and on the 20th of December, 1836, he filed a bill in equity in Clark Superior Court, against Colonel Ignatius A. Few and his wife, the said Selina A. Few, praying to be discharged from the office of trustee, and the appointment of another trustee in his stead, to whom he might deliver the trust property.

In this case a decree was rendered discharging William A. Carr and substituting Iverson L. Graves in bis stead. It was also decreed " that for and on account of the lands sold in Alabama by the said William A. Carr and granted by Congress to the heirs and legal representatives of Colonel Thomas Carr, deceased, that the said William A. Carr to pay over to his successor, the said Iverson L. Graves, in trust for the use of Mrs. Selina A. Few, $5,258 25, " which sum was, by the terms of the decree, to be paid in three equal installments, on the 3d of March, 1840, and on the 3d of March, 1841, and on the 3d of March, 1842, respectively. The decree further provided, that if the said Ignatius A. Few and his wife, Selina A. Few, preferred to take the stock of the Georgia Railroad and Banking Company at par, or the notes of Robert Jameson, the purchaser of the lands in Alabama, to the money decree, they should have the right to do so, by making their election in writing, and that if they should so elect, that the said William A. Carr should execute a transfer of the railroad stock, or notes, to said Graves, for the use of the said Selina A. Few.

Under this decree the parties elected to take the railroad stock rather than the money decree or the notes on Jameson.

On the 31st day of January, 1840, Mrs. Few applied to Graves, her trustee, and preferred a request that he would execute a blank power of attorney to have said railroad stock sold, transferred, or pledged, and also for receiving the dividends on the same, with which request Graves complied, and took from Mrs. Few a receipt, of which the following is a copy, to-wit:

" I have this day received from Iverson L. Graves, Esq., my lawfully constituted trustee, a blank power of attorney, to have fifty shares of railroad stock, (which, by a decree of the Superior Court of Clark county, in the State aforesaid, was to be transferred by William A. Carr to him, the said Iverson L. Graves, for my use,) sold and transferred, or pledged, and also for receiving the dividends on said stock, and also a blank transfer of the decree of the Court aforesaid in my favor, to be used in case the said Carr should not transfer the said shares, and the said blank power of attorney and transfer of the same shall be a full discharge of my said trustee, Iverson L. Graves, and payment made to me for said shares or decree as the case may be. Provided, the shares or decree are sold, otherwise they will remain vested in him as my trustee as heretofore. 31st January, 1840.

"SELINA A. FEW."

Mrs. Few received from her husband notes amounting to $4,200 00, and a lien on a house and two lots in the city of Columbus, and in consideration thereof the railroad stock was transferred to the trustees of Emory College, and Mrs. Few deposited the notes and lien with Graves, her trustee, to be held by him for her in lieu of the said stock. Graves continued to act as trustee for Mrs. Few until March, 1843, having in his bands during that time the notes and lieu aforesaid. The whole of the notes were good and available, and Graves had collected a considerable portion of the money due thereon.

Mrs. Few becoming dissatisfied with Graves, as trustee, filed a bill in Newton Superior Court, in which Ignatius A. Few, her husband, was complainant with her, praying the removal of Graves from his office of trustee, and the appointment of another in his stead. The bill was...