Mason v. Deese

• Decision Date: 31 May 1860
• Citation: 30 Ga. 308
• Court: Georgia Supreme Court
• Parties: MASON et al. v. DEESE.

30 Ga. 308

MASON et al. v. DEESE.

Supreme Court of the State of Georgia

MAY TERM, 1860.

In Equity, in Wilkinson Superior Court. Tried before Judge HansEll, at April Term; 1860.

This was a bill brought by James Mason, as administrator of Susan Lowe, formerly Susan Mason, deceased, and the other plaintiffs in error, as; her brothers and sisters, and heirs at law, against Joel Deese, as administrator of Lunsford Lowe, deceased, the husband of said Susan. The substance of the case made by the bill is, that the said Lunsford and Susan intermarried, first executing a marriage settlement, which is as follows:

"GEORGIA—Laurens County:

"This indenture tripartite made and entered into this 5th day of April, in the year of our Lord one thousand eight hundred and forty-five, between Susan Mason, Lunsford Lowe, and James Mason, trustee of and for Susan Mason, as follows: Whereas, a marriage by Divine Providence is contemplated to be had and solemnized in, a short time between the said Susan Mason and the said Lunsford: Lowe; and whereas the said Susan Mason is seized and possessed, in her own right, of some valuable property, to-wit: a stock of neat cattle, and as one of the legatees of Turner Mason, her deceased father, she is entitled to a considerable property, both real and personal, consisting of lands, negro slaves and other personal property to a large amount, the value of which can not at present be ascertained, but it is expressly understood and agreed that so soon, as a division of the estate shall be had, that a schedule of the part of the said estate that shall or will fall to the said Susan Mason shall he annexed to, and form a part of this settlement and agreement. Now, in order to secure for the sole and separate use of the said property to the said Susan Mason, in the event that the said contemplated marriage does take place the said Susan Mason, by and with the consent of the said Lunsford Lowe, which is evinced by his becoming a party to the agreement and settlement, and signing the same, in consideration of the said contemplated marriage, and for the further consideration of five dollars to her in hand well and truly paid by the said James Mason, at and before the sealing and delivery of these presents, the receipts whereof is hereby acknowledged, hath granted, bargained, sold and conveyed, and by these presents do grant, bargain, sell, alien, convey and confirm unto the said James Mason, and his heirs and executors, all the before mentioned stock of neat cattle, the artificial marks of which, and the number of which, when ascertained, shall be annexed, by way of schedule, to this agreement and settlement; also, the legacy which is left to the said Susan by the last will and testament of her said father. Turner Mason, which, when assigned and turned over to her by the executor of the said testator, shall also be annexed, by way of schedule, to this agreement, and shall form: a part and parcel thereof, and the same is to be held by the said James Mason and his heirs and executors upon the following trusts, stipulations andconditions of, and concerning the same, as, follows, to wit: that the said property nor any part thereof, or the proceeds, profits or hire thereof is never to be subject to the control, contracts or liabilities of the said Lunsford Lowe heretofore made or entered into by him, and also upon the further trust and condition that the said property, and every part and parcel thereof, shall remain in the possession of the said Susan and the said Lunsford Lowe, in the event that the said marriage shall take place, and that she shall also have, take and appropriate the proceeds, hire and profits thereof in such manner as she shall deem fit and proper for the support, comfort and maintenance of herself and her family, including the said Lunsford Lowe during their joint natural lives and living together, and also upon the further trust and condition that after the death of the said Susan, in the event that she shall leave a child or children by the said marriage, then the said property and every part and parcel thereof shall go to and vest in the said child or children in fee simple; and upon the further trust and condition that, in the event there shall be no child or children of the said marriage, then the said Susan shall have the right to dispose of the said property by deed or by last will and testament, or in such mode as she may adopt, which shall not, however, take effect or deprive her of the possession of the said property during the term, of her natural life; and also upon, the further trust and condition that in the event that at any future time it may be deemed proper by the said Susan that a part or portion of the said property should be sold for the purpose of supporting and maintaining the said Susan and her family, or for changing the said property and investing the proceeds of the same in other property which the said Susan might deem, more suitable or profitable, then she shall have the right to do so, by the consent of the said James Mason, and the deed in writing of the said Susan and the said James Mason shall be a sufficient conveyance of the said property, and the property so purchased with the proceeds of the property so sold, shall be held in the same manner, and be subject to the same conditions and limitations as that hereinbefore conveyed, and the said Lunsford Lowe covenants, promises and agrees that he will exercise no greater power or authority over the property hereinbefore conveyed than he is authorized and permitted to do by this settlement and agreement, and the said James Mason, trustee, promises and agrees, on his part, that he will faithfully execute, perform and fulfill all things hereinbefore agreed to be performed and done on his part.

"In testimony whereof, the said Susan Mason, Lunsford Lowe and James Mason have hereunto set their hands and affixed their seals the day and year first above written.

"Signed, sealed and delivered in the presence of

"Rebecca Davis

his

"William A. J. x Britt,

mark. "Jacob T. Linder, J. P.

SUSAN MASON, [L s.]

L. LOWE, [L. s.]

JAMES MASON, [L. s.]

"GEORGIA, "Laurens County:

Clerk's office Superior Court, recorded in book C, pages 130, 131, 132 and 133. Sept 17th, 1845.

"Francis Thomas, Clerk."

It is further alleged that Lowe was insolvent at the time of the marriage, and that his insolvency was one of the reasons for the settlement. The allegations further are, that the wife, died, leaving the husband surviving her; that he then died, and the defendant, Deese, took out letters of administration upon his estate, and under that authority took into his...