Kempton v. Morris L. Hallowell & Co

• Decision Date: 31 January 1858
• Citation: 24 Ga. 52
• Court: Georgia Supreme Court
• Parties: Edward S. Kempton et al., plaintiffs in error. vs. Morris L. Hallowell & Co., defendants in error.

24 Ga. 52

Edward S. Kempton et al., plaintiffs in error. vs. Morris L. Hallowell & Co., defendants in error.

Supreme Court of the State of Georgia

JANUARY TERM, 1858.

In Equity, in Chatham Superior Court. Decision on demurrer, by Judge Fleming, at Chambers, August, 1857.

This was a bill filed by Morris S. Hallowell & Co., against Edward S. Kempton, and Anna Virginia Kempton, his wife, and John N. Lewis, trustee, to subject the trust estate created by the marriage settlement executed between Kempton and wife, before marriage, to certain promissory notes signed by Kempton, and endorsed by his wife, to complainants.

The bill alleges, that Edward S. Kempton and Anna Virginia Daughtry intermarried in 1845. That said Anna being possessed of a considerable estate, a marriage settlement was executed, by which she conveyed to Bartholomew Busby, as trustee, all her estate, to hold the same in trust for the jointuse of herself and intended husband, during their joint lives, but not to be subject to the debts or contracts, control or engagements, of the said Edward S., and to and for the use of the survivor for life, and after the death of the survivor, then to the issue of the marriage, and if no issue, then in fee to the survivor.

The bill further states, that about nth December, 1854, the said Edward S. Kempton made six promissory notes, amounting in the aggregate to about $2,800.00, payable to the order of the said Anna Virginia Kempton, who endorsed and delivered the same to complainants, and which said notes have not been paid, either by said Edward S., the maker, or by the said Anna Virginia, the endorser.

The bill further charges, that Mrs. Kempton endorsed said notes with the intention to make the same a charge upon her estate, created in and by said marriage settlement, and said endorsements were so accepted by complainants, and that the interest of said Edward S. and his wife in said estate, is liable and subject to the payment and satisfaction of said notes. That said Edward S. has no property or estate other than the interest he may have in the property mentioned in said settlement, and beyond this he is insolvent.

The bill further states, that John N. Lewis has been substituted trustee in the place of Busby.

The bill prays, that the amount of said promissory notes be decreed to be a lien on the property mentioned in said marriage settlement, and that complainants have execution to be levied on the interest of said Edward S. and wife, in said property; or that said trustee be decreed to pay the rents and profits of said estate to complainants, until said debts shall be fully paid, and upon his failure so to do, that a receiver be appointed, who shall take charge of said estate, and hold the same until said notes be fully paid out of the income and profits thereof.

The marriage settlement, after reciting that a marriage is contemplated between the parties of the first and secondparts, and conveying the estate to Bartholomew Busby, declares that he shall hold the same: "In trust, nevertheless, to and for the sole use, benefit, and behoof of the said Anna Virginia, until the marriage shall take place, and from and immediately after the solemnization of said intended marriage, to and for the joint use and benefit of the said Anna Virginia and Edward S., during their joint lives, but not to be subject in any manner to the debts, contracts, or engagements of the said Edward S., and to and for the use, benefit, and behoof of the survivor of the said Anna Virginia Daughtry and Edward S., and to and for the use, benefit, and behoof of the survivor of the said Anna Virginia Daughtry, and from and after the death of the said survivor, then on trust, that the said Bartholomew Busby, his executors, administrators, or assigns, will deliver the same to the issue of said intended marriage, share and share alike, free from any trust. But if the said Anna Virginia should die in the lifetime of the said Edward S., her said intended husband, without leaving any issue living at the time of her death, then in trust, that the said Bartholomew Busby, his executors, administrators, or assigns, will transfer and deliver over to the said Edward S., all the property and estate herein contained and conveyed, free from any trust, and it is understood, covenanted, and agreed, by and between the parties to these presents, that it shall and may be lawful for the said trustee, or any trustee who shall or may be appointed in lieu of said Bartholomew Busby, to bargain, sell, or dispose of any or all the said property, present or future, upon the wish and approbation of the said Anna Virginia, and Edward S., and the survivor of them, which said approbation shall be signified in writing, investing, preserving, and disposing of the proceeds of said sale or disposal, upon the uses and trusts hereinbefore mentioned."

Dated 4 Dec, 1845.

To this bill, defendants filed a general demurrer, which, after argument, the Court overruled, and counsel for defendants excepted.

Bacon & Levy, for plaintiffs in error.

Lloyd & Owens, for defendants in error.

By the Court. —Benning, J., delivering the opinion.

The object of the bill, is to subject the property mentioned in the deed of marriage settlement, to the payment of the notes of Kempton, endorsed by his wife to the complainants.

The bill was demurred to for want of equity, and the demurrer was overruled.

Ought the demurrer to have been overruled? In other words, was there equity in the bill?

If the deed created a property or estate in the wife, which did not, on marriage, pass to the husband, but remained the wife's, and if, by endorsing his notes, she bound this property or estate, then there was equity in the bill. This may be assumed.

And even if the deed created no such property or estate in the wife, but yet created such estates in the husband, and in the remaindermen, that the estate of the husband could not be reached at law without prejudice to the estate of the remaindermen, then, too, there was equity in the bill. This, also, may be assumed.

First then, did the deed create any estate in the wife, which, on the marriage, did not pass to the husband, but remained the wife's?

The words of the deed, bearing on this point, are these:

"In trust, nevertheless, for the sole use, benefit, and behoof, of the said Anna Virginia, until the marriage shall take place; and from and immediately after the solemnization of said intended marriage, to and for the joint use and benefit of the said Anna Virginia and Edward S., during their joint lives, but not to be subject, in any manner, to thedebts, contracts, or engagements, of the said Edward S.; and to and for the use, benefit, and behoof, of the survivor of the said Anna Virginia Daughtry and Edward S.; and from and after the death of the said survivor, then, in trust, that the said Bartholomew Busby, his executors, administrators, or assigns, will deliver the same to the issue of the said intended marriage, share and share alike, free from any trust. But if the said Anna Virginia should die in the lifetime of the said Edward S., her said intended husband, without having any issue living at the time of her death, then, in trust, that the said Bartholomew Busby, his execut...