Park v. Hardy , 19 Ga. 127 ( 1855 )

By the Court.

Benning, J.

delivering the opinion.

What did the testator, by the fourth item of his will, give to his children ?

He gave them so much of the “ rail road stock” as would' be sufficient to defray the expenses of their “thorough classical education,” and the expenses of their board during the-time of the education, on condition that they had “ sufficient capacity” to receive such an education. He gave them no more than this.

This was such a proportion of the stock as might be equal to the dividends on the stock, or as might be greater than the dividends, or as might be less. It was a quantity, too, which would almost, of necessity, vary with itself, from year to year,. if not from month, to month. It could not be the dividends.

[1.] It follows, that the children were not - entitled to the-dividends. And if the children were not entitled to the dividends, the guardians of the children were not entitled to call for the dividends, or for a power to receive the dividends.

It may not be amiss to add, that we think that the proportion of the stock, whatever it was, to -which the children were entitled, wTas to be administered by the executors. That proportion we think, was to be applied, by them, to the payment of the expenses of the board and education of the children, from time to time, as those expenses fell due. We can see no other course that would be safe to the executors — especially as the bequest was a conditional one — was a bequest only on condition that the children should be found to have a certain degree of mental capacity.

In making the eleventh item of his. will, it was probably the intention of the testator that his wife should be entitled to receive the negro woman she was, by that item, allowed to select, as soon as she should make the selection; and therefore, that she should be entitled to the hire and issue of the woman that might, after such selection, accrue and be born.

But the wife was, as we think, prevented from making a 'Selection of a woman by the conduct of the executors towards her, when she demanded of them her property.

The question, then, becomes this: Is the wife to be deprived of a benefit which the testator intended for her, by not any fault on her part, but by the unauthorized conduct of the executors ? And we say, certainly not, if there is any way of preventing the thing.

£2.] And there seems to be not much difficulty in finding a way to do that. Let the wife still select a woman, and let the selection be considered as relating back to the time when she was prevented, by the executors, from making the selection. In this way, she will get the woman and the woman’s hire and issue (if any) of a date subsequent to the time when her right accrued.

This, it seems, was the idea of the Court helow.

We affirm both of its decisions.