Horton v. Mercier

• Decision Date: 31 August 1860
• Citation: 31 Ga. 225
• Parties: HORTON et al. vs. MERCIER et al.
• Court: Georgia Supreme Court

31 Ga. 225

HORTON et al. vs. MERCIER et al.

Supreme Court of the State of Georgia

AUGUST TERM, 1860.

31 Ga. 225

In Equity, in Troup Superior Court. Tried before Judge Bull, at the May Term, 1860.

This case came up for a hearing upon the following state of facts, to wit:

On the 26th of October, 1850, Jeremiah Horton made and published his will in due form of law.

The first item of the will contains a bequest of certain lands to Frances Horton, the testator's wife, for her ownuse and benefit during her natural life or widowhood, and at her death, to his son, John H. Horton; also, certain slaves, named, and all other slave property, of which the testator might die possessed, not otherwise disposed of in said will; also, all the stock of every description, not otherwise disposed of in the will, together with a wagon and gear, ox-cart, pleasure carriage, cotton gin, and all other undisposed of items of property, of which the testator might die seized and possessed, to be held and enjoyed by his said wife during her natural life or widowhood, with power to sell any of said property, and invest the proceeds as she might think best for the interest of her and her children.

The second item contains a bequest of certain lands to the testator's sons, Thomas R. Horton and Jeremiah S. Horton, to be equally divided between them, by sale or partition, as they may think fit.

The third item contains a bequest of certain slaves and money to the testator's daughter, Mrs. Eliza A. Duncan, to be secured to her and her children.

The fourth item contains a bequest to the testator's son, Thomas R. Horton, of certain slaves and other property.

The fifth item contains a bequest to the testator's daughter, "Mrs. Rebecca M. Mercier, the following negroes: Hannah, a woman, and her increase; George, a boy; Bill, a boy; and Jim, a boy—to her and her children, forever, which said negroes have heretofore been delivered to her."

The sixth item contains a bequest of certain negroes and other property to the testator's son, Jeremiah S. Horton.

The seventh item contains a bequest of certain negroes and other property to John H. Horton, a son of the testator.

The eighth item provides, that the property bequeathed to Jeremiah S. Horton and John H. Horton should be retained and managed by the wife of the testator until they arrived at full age, and that, if any of the negroes bequeathed to said sons should die or become disabled before the majority of said sons, it should be made up to them at the death or marriage of their mother, or sooner, if she could spare it.

The ninth item directs: "That, if either of the testator's sons should die during their minority, and without marriage or issue, then their distributive share, or shares, should revert back to his estate, to be held by his wife during her life or widowhood, and at her death to be distributed as directed in the next item."

The tenth item provides, that, should the testator\'s wife see proper to marry again, she shall, first, be made equal with his children in the distribution of his property, and then the balance in her hands, not otherwise disposed of, to be sold and equally divided between her and the testator\'s children, and in the event of her death, unmarried, then the said property to be equally divided among all my children, and that the shares, or portions, to which Mrs. Duncan and Mrs. Mercier may become entitled under this clause of the will, shall be secured to them and their children by the executors of the will, who were empowered to make such conveyance in trust or otherwise, as should secure the said shares to the sole and exclusive use and benefit of the said Mrs. Duncan and Mrs. Mercier, and their children, and in the event of the death of either of the testator\'s said daughters, without issue, then their said distributive shares should revert back to said estate, to be equally distributed amongst the balance of the testator\'s children.

The eleventh item imposes a forfeiture on any one of the testator's children who refuses to bear his or her equal proportion of the expense of any lawsuit, or judgment, that may come against the estate.

The twelfth item appoints the testator's wife, Frances Horton, executrix, and his two sons, Thomas R. Horton and Jeremiah S. Horton, executors of said will.

After the making of the will, and before the death of the testator, Mrs. Frances Horton and John H. Horton both died— the said John H. Horton leaving neither wife nor children.

The testator died, leaving the said will in full force, and the same was duly proven and recorded, and the said Jeremiah S. Horton and Thomas R. Horton assumed the execution of said will as executors.

Thomas D. Mercier was duly appointed trustee for his wife, Rebecca M. Mercier, and her children, with notice to, and by consent of, said executors, and, as such trustee, filed his bill in the Superior Court of Troup county, against the said executors, praying that they might be decreed to account and pay over to him the one-fourth part of the proceeds of all the property bequeathed to the said Frances Horton in and by said will, and also the one-fourth part of the proceeds of all the property bequeathed to the said John H. Horton, and also the one-fourth part of all the property not otherwise specifically disposed of by said will.

To this bill the executors filed their answers in the nature of a cross bill, alleging, amongst other things: That, in their opinion, the trust, declared in the tenth item of the will of the testator, attaches in all its terms to the property bequeathed by the fifth item of the will, and they pray in their said answer, that guardians ad litem ...