Patterson v. Lawrence

• Citation: 10 S.E. 355,83 Ga. 703
• Parties: Patterson et al. v. Lawrence.
• Decision Date: 18 November 1889
• Court: Supreme Court of Georgia

10 S.E. 355

(83 Ga. 703)

Patterson et al.

v.Lawrence.

Supreme Court of Georgia.

Nov. 18, 1889.

Trusts—Power of Appointment—Rights or Creditors.

1. Where property is conveyed to a trustee, to the use of a person for life, with a power of appointment by will, and the cestui que trust exercises the power, the property does not thereby become subject to his debts, where the will was thus made only to insure title to one who had previously, in good faith, purchased the property, when it was sold under a decree of court.

2. Nor can the property be subjected to the debts of the cestui que trust, unless it is shown that he did not have sufficient assets to pay them.

8. The property is at most only equitable assets, and cannot be made subject to the debts in an action at law; and a case submitted on the interposi tion of a claim or levy of an execution, with no other pleadings than the execution, the sheriff's entry, and the claim interposed, is not an equitable proceeding for such purpose, though equitable jurisdiction is conferred on courts of law.

Error from superior court, Richmond county; Roney, Judge.

Patterson & Co. obtained a judgment and execution against Anna Leckie, and levied on property. Bryan Lawrence interposed a claim, which was sustained, and Patterson & Co. bring error.

Leonard Phinizy, for plaintiffs in error. J. B. dimming and Bryan dimming, for defendant in error.

Blandford, J. On the 12th of March, 1866, Samuel Leckie, of Richmond county, conveyed to John Coskery, as trustee, and his successors in office, a certain tract or parcel of land in the city of Augusta, "in trust, for the sole and separate use, benefit, and behoof of Anna Leckie, wife of the said Samuel Leckie, wholly free from, and not subject to, the debts, contracts, or liabilities, past, present, or future, of the said Samuel Leckie, or any future husband of the said Anna Leckie, for and during the term of her natural life, and, on her death, to such person or persons, or for such purpose or purposes, as she, the said Anna, by her last will and testament, duly executed, may designate and appoint. But, should the said Anna die without having made and executed such last will and testament, then the said property, or any property which may be then held in lieu thereof, shall be equally divided, share and share alike, between Samuel Leckie, the son, and Louisa Jones Leckie, the daughter, of the said Samuel and Anna; the child or children of a deceased child to stand in place of and represent the parent." And power was given to the trustee, with the consent of Anna Leckie, to sell the property, the proceeds to be reinvested in other property. Samuel Leckie, Sr., died July 9, 1874. Samuel Leckie, Jr., died July 20, 1877, leaving issue. On the 14th of April, 1886, the judge of the superior court, at chambers and in vacation, granted an order authorizing the sale to Bryan Lawrence of the property conveyed by said deed of trust; the consideration being $2,500, and the sale private. Notice of the application for this order of sale was not given to the minor heirs at law, and they were not present, or represented by guardian ad litem, when the order was granted. On the 15th of April, 1886, a deed was made to Bryan Lawrence, reciting that it was in pursuance of said deed of trust and order of court. This deed was signed by Anna Leckie and by Luke Dunn, trustee. The money arising from the sale of said property was partly used in paying off incumbrances in the nature of taxes and judgments against the trust property, and $500 of the same was invested in the name of Luke Dunn, trustee, in stock of the Mutual Real Estate & Building Association, which stock the trustee obtained leave to sell by an order of the superior court, granted on the 16th of December, 1886. It is not known what became of the remainder of the purchase money. On the 9th of February, 1888, Anna Leckie made a will, in which she devised to Bryan Lawrence the landalready conveyed to him under the order of sale. On the 20th of February, 1888, she died. On the 13th of December, 1888, this property was levied on under a fi. fa. obtained upon a judgment in favor of Patterson & Co. against Anna Leckie, July 2, 1877. A claim was thereupon interposed by Lawrence. The case was submitted to the judge of the superior court, without the intervention of a jury, for his judgment and decision thereon. Upon the trial, William H. Flemming testified that he drew Mrs. Leckie's will and was a witness to it; that he thought she made it in order to confirm the title in Lawrence to the property for which he paid $2,500 on the 15th of April, 1886; that the witness at the time of said sale had paid the proceeds to the trustee in her presence; and that she made the will freely because she thought she was morally bound to give a good title if she could possibly do so. The court held and decided that Lawrence got a good title as against the creditors of Mrs. Leckie, and that his claim must therefore be sustained. To this judgment of the court below the plaintiffs in execution excepted, and assigned error therein.

It is insisted by counsel for the plaintiffs in error that,...