Thrasher v. Partee

• Decision Date: 31 December 1867
• Citation: 37 Ga. 392
• Parties: Early W. Thrasher, et al., plaintiffs in error. vs. Abner M. Partee and wife, defendants in error.
• Court: Georgia Supreme Court

37 Ga. 392

Early W. Thrasher, et al., plaintiffs in error. vs. Abner M. Partee and wife, defendants in error.

Supreme Court of the State of Georgia

DECEMBER TERM, 1867.

Equity. Motion to dissolve injunction. Decided by Judge Vason. Morgan Superior Court. September Term, 1867.

Abner Partee and his wife, Emma J. Partee, (whose maiden name was Emma J. Lane) alleged, in their bill, that she * was the grand-daughter of William Stallings, who, on the 10th day of October, 1858, made and published his last will and testament, the fourth item of which was as follows: " I give and bequeath unto my two grand-children, William and Emma Lane, the children of Dawson B. Lane, the one-sixth part of my estate, to them and their heirs forever; and do hereby appoint their father, the said Dawson B. Lane, their guardian for both person and property; and should either of my said grand-children, William and Emma Lane, die before they arrive at lawful age, or marry, then it is my will that the whole of the property which I have here given them, with its increase, go to the survivor; and should they both die without either of them arriving at full age or marrying, then, it is my will that the whole of said property return to my estate and be equally divided between my other five legatees or their legal representatives, subject to the same limitations and restrictions as are imposed respectively upon them in the property given them in this will."

William Stallings died on the 18th of October, 1858, —his will was proven and his executors, under said item, delivered over to Dawson B. Lane as such guardian, cash and property amounting to $40,000.00, or other large sum of money. William Lane died in October, 1866, and before he was of age. Complainants were married 7th March, 1866, and claim the whole of said legacy.

When Stallings died, Dawson B. Lane owned and possessed a tract of land in Morgan county, and some stock of the aggregate value of about seven thousand dollars, and was indebted to Stallings over four thousand dollars (as they believed) for which Stallings held his note, and the money, for which said note was given, almost in whole, was invested in said land. When Dawson B. Lane took charge of said wards and their property, he owed Stallings. an amount sufficient, as they believed, to cover all his property. At the sale of Stallings' property, Dawson B. Lane bought about twenty-five hundred acres of the lands of the estate at about ten thousand dollars, and perishable property of said estate of about the same amount. And, in settling with the executors for said purchases, Dawson B. Lane, as such guardian, gave to the executors, receipts for the amount of all of said purchases and of his aforesaid indebtedness to Stallings, thereby investing the money of the wards in all the property he then owned.

The minors were then of tender age, —their guardian, from year to year, received large amounts of money for the hireof slaves belonging to the wards, and applied the same to his own uses. He received other sums with which he is chargeable. He charged them for board and personal expenses (as appears by his exhibited returns) which they say is illegal. Lane is now involved, and has no property except that aforesaid, (which is insufficient to pay what he owes the wards) and they can rely only on this, because the securities on the guardian\'s bond, Hugh J. Oglesby and Charter Campbell, are insolvent.

Lane is sued in various cases, and judgments have been obtained against him for a large amount. Besides this, he, on the 26th of April, 1866, mortgaged to Early W. Thrasher three thousand acres of said lands, bought and paid for with the trust funds aforesaid, to secure to Thrasher the sum of twenty-six hundred dollars. They charge that Lane is combining with Thrasher and others unknown, ctc., to...