Commercial City Bank v. Clay , 147 Ga. 386 ( 1917 )

Beck, P. J.

Where a testator bequeaths and devises to his wife and a son all of his property “share and share alike,” and directs in his will that the property owned by him at the time of his death be kept together and not sold for twenty years after his decease by either his wife or his child, “except such exchanges and sales of personal property as may be necessary to keep up said property and the annual proceeds of said property,” and the property is left “under the direction of my executrix [the wife of the testator],” the will declaring in terms that it is left “entirely discretionary with .her [the executrix J what annual allowance she shall make to my son, . . knowing that I can trust a mother’s love to do right by her children;” and where it is further provided in the will that should the wife of the testator marry again, she shall cease to be executrix under the will, but the testamentary scheme shall be carried out by a legally appointed administrator, and that the annual income is still to be paid “to her [the widow of the testator] for her benefit and the benefit of my children who may be minors, but the portion due to such as might be of age to be paid to them respectively,” a son who has become of age could not enforce a demand for the payment to him of any portion of* the income of the estate, except in an equitable suit seeking an accounting and the ascertainment of the amount due him. And inasmuch as the son would necessarily be compelled to resort to such equitable proceedings to enforce a demand for any part of the income from the estate, a creditor of liis would also have to resort to equitable proceedings to subject his portion to the creditor’s demand; and garnishment proceedings instituted in a city court by the creditor, in which the mother (as executrix) is named as garnishee, would not lie:

No. 172. November 17, 1917.

Garnishment. Before Judge Harper. City court of Americus. July 18, 1916.

Wallis & Fort, for plaintiff. J. A. Rixon and F. A. Rawlcins, for defendant.

Judgment affirmed.

All the Justices concur (Sill, J., specially), except , Fish, 0. J., absent.