Bolick v. Cox , 145 Ga. 888 ( 1916 )

Beck, J.

(After stating the foregoing facts.) "We are of the opinion that the court properly sustained the demurrer to the petition. The bequest contained in the item of the will referred to in the statement of facts is not so indefinite that it can not be enforced. Huger v. Protestant Episcopal Church, 137 Ga. 205 (73 S. E. 385); Buchanan v. Kennard, 234 Mo. 117 (136 S. W. 415, 37 L. R. A. 993, and note, 1007, Ann. Cas. 1912D, 50); 5 R. C. L. 332, § 58. See Hills v. Atlanta Art Asso., ante, 856. The fact that there is a system of public schools in Bibb County, as there is in all the other counties in the State, in no wise interferes with the execution of the design of the testator that a free school should be established with the income from the bounty bequeathed. If the free school contemplated by the testator were exactly of the same character as the free schools now established under the laws of force in this State, it would not necessarily follow that there was no school which could take advantage of the testator’s bounty; and it does not necessarily follow from the use of the expression “free school,” nor is it inferable therefrom, that the free school contemplated by the testator is limited in its educational scope, or that it is of the precise character as the public schools established by the laws of Georgia. There could be no serious trouble in carrying out the real intention and design of the testator. It may require some consideration of the details, though with that we are not concerned. If the present use of the income, arising from the fund accumulated under the testator’s will is an improper diversion thereof, a continued diversion can be prevented by proper proceedings in the superior court. The improper diversion affords no reason why the trust should be declared void and the fund itself be turned over to the heirs.

Judgment affirmed on the main bill of exceptions; eross-bill dismissed.

All the Justices concur, except Gilbert, J„ not presiding.