Edwards v. Perryman , 18 Ga. 374 ( 1855 )

By the Court.

Starnes, J.

delivering the opinion.

[1.] The order of the Court below, dissolving the injunction as to Crawford, on the ground that the equity of the bill'was SAVorn off, Avas too general. We think it right that the-injunction should have been dissolved, (according to the case made by the answer,) to the extent of the debts of Edwards, shown to have been in existence at the date of the deed executed by him. And that the Court should have modified his-order so that Crawford might have proceeded to collect the-note in his hands, if he chose to take the risk of this, with the bill pending, and have paid such debts, holding the balance subject to further decree. But the answer does not show whether or not these debts Avould have absorbed the fund in question. If they Avould not, it is proper that the-balance of the note in 'Crawford’s hands, after these debts were paid, should be held, by him subject to be paid over to the purposes of the trust. The Chancellor should have given the case direction accordingly. To the extent indicated;.. therefore, we reverse the judgment dissolving the injunction,

[2.] This record shows that the bill was filed “ at the in-; stance and request of Mrs. Edwards, and for the protection of her rights in the propertythat the Counsel who filed the same was employed by Mr. Perryman, the latter stating: that he did so for the benefit of Mrs. Edwards; that she waste pay the fee, &e. and that it was dismissed in vacation by Perryman, without the knowledge or consent of Mrs. Ed’wards or her said Counsel, and against her wishes. • The record-further shows, that Mrs. Edwards was the person chiefly interested as complainant in the suit, and who would be most-affected by a disposition of the property sued for.

The deed had conveyed the property/or the sole and separate use and benefit of Mrs. JUdwarcls during her life, her husband being allowed the management and control thereof, with her consent, the issue and proceeds to be applied to their joint support — the surplus to bo applied by the husband, as-trustee, to the purchase of other property, with consent of’ the wife, and with power in the husband, with consent of the wife, to change the property. And the right of survivorship was secured to the husband and wife, respectively. Provis--' ion was also made, by the deed, for a change of the trustee,, by the joint action of the husband and wife, at their pleasure.

Now the bill, in the name of the trustee, Perryman, and of Mrs. Edwards, by prochein ami, sets forth the waste of the* property by Edwards, the husband, declares his incapacity, by reason of bad habits, to manage the same properly, and prays that it may be taken from him and placed in the hands-of a receiver, or of the trustee, Perryman, until the farther decree of the Court; and that such receiver or trustee should be required to give bond and security that he would faithfully' execute the trust.

Its purpose has not been served, therefore, by the delivery up of the property to the trustee, as has been argued. That trustee, himself, should be required, if he is to retain possession of the same, to give security .for its faithful management,, according to the prayer of the bill, and a decree may be needed to adjust the rights of the parties under this change of circumstances. Edwards, the husband, by the deed, was allowed the management of the property, the right to invest any.surplus thereof, and to change any portion of the investment, with the consent of the wife. Now that the property is taken from him, who is to execute these provisions of the deed ? How can this power be transferred to the trustee, without a decree to this effect?

It is plain that all this can he determined and settled only by a decree of the Chancellor. And therefore, the purposes of the hill have not been served. If not, as Mrs. Edwards is the chief beneficiary under tbe deed — is the person most interested in the disposition of the property, and in the decree to he made, she had the right to he consulted as to the dismissal of the bill, and she and her Solicitor should have had an influence in giving direction to it. No act of the trustee should he allowed to prejudice her rights. (Batts vs. Strutt, 1 Hare, 146. Parker vs. White, 11 Ves. 226. Hill on Tr. 316, 317.)

It only remains to add, that what has been said authorizes the conclusion, that the bill was properly re-instated in tho-Court below.