McLaughlin v. Ham , 84 Ga. 786 ( 1890 )

Bleckley, Chief Justice.

1. The trial judge granted a new trial for the reason that the defendant in fi. fa., Mrs. Lavin, has an estate for her own life which is subject to levy aud sale. If that ruling be correct, the judgment oughtto be affirmed; for although a larger estate, the fee simple, was levied upon, yet if the lesser estate is subject, the execution should proceed against the property and a sale of the life estate be had. If the levy be too comprehensive, that will not prevent a sale under it of such estate as is subject to the lien of the judgment. If the levy is too large on the one hand, so is the claim on the other. The legal efficacy of each of them may be cut down on the trial of the claim case by the verdict of the jury, the former to the life estate, aud the latter to the remainder. No matter what is comprehended in a levy, a sale under it only passes such interest as the defendant in execution has in the property.

2. The mai’riage settlement was executed in 1848. Its terms appear in the official report. The property settled belonged to the prospective wife, not to tbe prospective husband. She conveyed to a trustee to hold for her sole and separate use during her life, and, contingently, in remainder for children. But she reserved to herself a power of disposition by will or deed, without any limitation or restriction upon the power save the consent of her intended husband, and that consent was to be, and was, manifested once for all by signing the settlement. This left her complete mistress of the legal title, in case she chose to exercise the power of disposition. And it is manliest that the interposition of a trustee was only for the purpose of holding off the mai’ital rights of the husband. When this function of the trastee became unnecessary to continue longer by reason of the act of 1866, there was nothing left for him to do, duxúng this lady’s life,.which she could not do without him and quite independently of his co-operation. The power of sale which hé took by the terms of the instrument could not be exercised save .by her written request. She could sell and convey by her own act alone, or through him, at her option. As she could do it in either mode, it was needless for him to continue in the trust, save to keep up this right of election, which was in no respect essential to her enjoyment of the property. The px’opex’ty levied upon was real estate, and she had, during her life, the exclusive use of it, and might sell not only the life estate but the fee, and no one could hinder her from so doing. Would not this dominion over the property in her be inconsistent with axxy sound theory that her estate in it for life is not subject (since the act of 1866) to levy and sale for her debts ? If she could sell it forever and appropriate the proceeds to her own use, why cannot the sheriff sell it for the period of her life to pay her debts? We can see no reason why he cannot; and the case has peculiar features Avhich distinguish it from all the cases cited by counsel, and from any others on the subject of which we have knowledge. We think it may safely be laid down that one who has, out of his or her own property, carved an estate for life, retaining also an unlimited power of disposition over the fee, whether a trust does or does not exist as to the remainder, has an interest in the property which is now subject to levy and sale for the payment of his or her debts. We decide the case on its special facts. Now that the rights of married women have so little to distinguish them from the rights of other persons, and when legal and equitable rights generally, and the remedies to enforce them, are so little dissimilar as they are in our law, we are quite confident that the decision is sound in essence and principle. If any reason whatever can bé adduced against it, it is so refined and technical as to merit no serious consideration, when a question of substantial justice is involved. Whether the trustee will have anything to do in behalf of the remaindermen, depends solely and entirely upon the future will and conduct of this tenant for life. Should she choose, without his co-operation, to dispose of the fee, whether by sale or devise, the trustee will have nothing to do with it. In such event, there will be no remainder to protect. Can it be said that a trust interest, contingent altogether upon the volition of a debtor, both during life and at death, shall suffice to protect a certain and definite estate of such debtor against levy and sale in behalf of his or her creditors ? We think this is too high a prerogative to be claimed for any debtor, male or female, married or single, in the present condition of our law. The case of Schnell v. Toomer, 56 Ga. 168, was governed by the law as it stood prior to the act of 1866, the action in that case having been commenced in 1860. In Thomas v. Crawford, 57 Ga. 211, the usee for life was not the creator of the trust, nor had he any power of disposition over the fee. The same may be said of Jennings v. Coleman, 59 Ga. 718. In the present case, not only was the usee for life the owner of the property before it became affected by the trust, but she retained a power over it which subjected the trustee and his interest in the property to her will and pleasure. She could dispose of it without consulting him, and appropriate the proceeds to herself. She has title upon which she could recover in ejectment. Glover v. Stamps, 73 Ga. 209. The trust as to her estate for life was executed by the act of 1866. Kile v. Fleming, 78 Ga. 1.

There was no error in granting a new trial.

Judgment affirmed.