Napier v. Howard , 18 Ga. 437 ( 1855 )

By the Court.

Starnes, J.

delivering the opinion.

We are of opinion, that the amendment submitted should' have been received. And this opinion is intended to be expressed, without prejudice to the rights of the children of Mrs. Delaunay, who are interested in the decision which has been made, for the purpose of settling this property on Mrs. Delaunay and her children.

It seems to have been the intention of the Court and Jury which tried this case, to make a permanent settlement of this property, not only upon Mrs. Delaunay, for life, but upon her children — yet, the form of the settlement; that is to say, the verdict'of the Jury and the decree entered thereon, are not sufficiently technical and accurate in the terms employed, so as clearly to carry into effect this intention, and thus constitute the fund a provision for Mrs. Delaunay during life, and for her children after her death.

Still, if this be what was intended to be done, it is not too late for a Court of Equity to perfect or do rightly, what it has undertaken to do in this behalf, with respect to a fund which it still has under its control. But as the question, in this point of view, seems not to have been argued in the Court below, and was not carefully discussed before us, and' as we' are anxious that all parties, who may so desire, should be heard upon it; and being, ourselves, also willing to be further advised, we therefore affirm the judgment, directing the amendment to be received — suggesting that the children of Mrs. Delaunay may be permitted to ask that a formal and proper settlement of this fund be made upon them, and that the Court below do try and determine the issues so formed-