Phinizy v. Few , 19 Ga. 66 ( 1855 )

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] Was the Court right in holding, and so charging the •Jury, that the claim of the executory devisees, under the will of Thomas Carr, deceased, attached only on the original property bequeathed in the will; and that unless the property in question was a portion of the indenlical corpus bequeathed in the will of Thomas Carr, Mrs. Pew had a right to convey, free from the executory devise ?

That the executory devisees might maintain an action against Mrs. Pew for the waste of this trust property, we have no doubt. But is this their only remedy ? May they not elect to take as a substitute, the property purchased with •the proceeds of that bequeathed by the will ? Upon the plainest principles of equity, we are clear that they have this right. Suppose, however, that this were not so, and that the executory devisees have a lien only on the property so substituted for the money expended, cannot this lien be asserted and enforced ? No good reason has been given why it cannot. None occurs to this Court. A testator, by his will, often encumbers a legacy with an annuity or some other burden. The legatee and those claiming under him, with notice, take cum onere — why may not Equity enforce this as well as a vendor’s lien ?

Whether the executory devises, therefore, had an equitable title to the house and lot, or a lien upon it merely, for the amount of the trust fund expended upon it, the result is the same. It is an incumbrance upon the title; and Phinizy, receiving notice before the purchase money was paid, is entitled to protection, either in a Court of Law or Equity. ( Wharton’s Sill on Trustees, marg. p. 165, and Notes.)

Whether the property in dispute was or was not bought with the trust funds, we deem it unnecessary to inquire, inasmuch as this fact was wholly withdrawn from the consideration of the Jury by the charge of the Court. If there was any evidence that this property was purchased, wholly or in part, with the proceeds of that originally bequeathed by Col. Carr, the plaintiff in error is entitled to a reversal of the judgment. The deed made to Col. Eew as trustee, is some proof, however insufficient of itself. The proceeds of the boy Isaac, went into the hands of Mrs. Few, and may have gone to the payment of this property. But whether this boy falls within the executory devise in the will, will depend upon the future proof to be made in the case. The Alabama lands, it is true, were sold by Wm. A. Carr, as executor of his father, and the money was invested in Isaac and rail road stock. But if these lands were granted by the Government, directly to the heirs of Col. Thomas Carr, subsequent to his death, then this fund could not be followed and affected by the trust in the will.

We decide nothing, of course, upon this point.