Howard v. Napier , 3 Ga. 192 ( 1847 )

By the Court.

Warner, J.,

delivering the opinion.

This is a bill filed by af judgment creditor, to subject the property to which the wife of the defendant in the judgment, is entitled under the will of her grandfather, in the hands of the trustees appointed by the testator. The main question presented by the argument, and which we are called on to decide, is the proper construction, tobe given to the codicil to the will of Thomas Napier, the deceased testator.

The bequest in the codicil is in the following words : “ I do [1.] hereby give, bequeath and devise said property and estate, (meaning the property mentioned in the body of the will,) and all and every part thereof, whether real or personal, to my sons Leroy Napier and Skelton Napier, and my son-in-law Nathan C. Munroe, as trustees and in trust for my said son Thomas T. Napier, his wife, and his children Leroy Wiley Napier, Sarah C. Napier, Manfredonia M. Napier, and Thomas C. Napier, and any child or children of my said son Thomas T. Napieb that may hereafter he horn; the said trustees to be vested with the legal estate and full control of said property, and receive the rents, issues and profits thereof, and to apply the same to the use of, and for the support and maintenance of my said son Thomas T. and his family, and to the support, education and settlement óf the aforementioned children of my said son Thomas T. Napier, it being my will and desire that all the property that would have fallen to my said son Thomas T. under the aforementioned, revoked bequests and provisions of said last will, should under this codicil, vest in said trustees, in trust and for the use aforesaid forever.”

It appears from the record, that Sarah C. Napier intermarried with James L. De Lanney, who borrowed of the trustees aforesaid the sum of $4000, which sum was secured by two mortgages on personal property — the mortgages being of different dates, and each given to secure the loan of two thousand dollars.

It also appears that John H. Howard became the assignee of two judgments, obtained against De Lanney in 1842, on one of which there was due about $2,400, and on the other about $2,478.

Howard filed his bill to set aside the two mortgages, as fraudulent against creditors, and prays that the trustees under the will of Thomas Napier may be decreed to distribute to said De Lanney his share of the property or money in right of his wife, under said codicil, or a sufficient part thereof to satisfy the judgments, or that said trustees may pay directly said judgments, and have the same allowed them as so much distribution to said De Lanney; and that the mortgage fi.fas. be enjoined from proceeding to sell the mortgaged property, &c. The injunction was granted, and on a motion to dissolve the same on the coming in of the answers of the defendants, the Court below decided that the injunction should be dissolved, so as to permit the trustees to proceed with the oldest mortgage ji. fa., but held up the injunction as to the youngest mortgage fi.fa. Whereupon both parties excepted to the decision, and now assign the same for error here.

For the purpose of dissolving the injunction, the question offraud is put to rest by the answers of the defendants. The charge of fraud, in obtaining the two mortgages, is fully met and explicitly denied.

What then are the rights and equities of the respective parties growing out of this case, as presented by the record 1

The judgment creditor seeks to appropriate the share of the property which the debtor De Lanney is entitled' to receive from the trustees in right of his wife, in satisfaction of his judgments ; or so much thereof as shall be- sufficient for that purpose.

For the creditor it is contended, that by the terms of the codicil it was the intention of the testator, that the share of each child of Thomas T. Napier should be paid, to the females when they married, and to the sons when they became of age; that it was intended for their support, education and settlement.

On the part of the trustees itps contended, that thefproperty was to be kept together during the life of Thomas T. Naiprer, and then to be divided among his children, for the reason that the bequest included children who might hereafter be born, as well as those already born; and the probability of issue was not extinct aS long as Thomas T. Napier remained in life.

The counsel for the creditor, however, took the position, and insisted, that the bequest was confined alone to the children of Thomas T. Napier who were in life at the time of the death of the testator, and that cfter-horn children could not take under the bequest. Such a construction, in our judgment, would violate the manifest intention of the testator. The bequest is made to the trustees, “in trust for my said son Thomas T. Napier, his wife, and his children Leroy Wiley Napier, Sarah C. Napier, Manfredonia M. Napier and Thomas C. Napier, and any child or children of my said son Thomas T. Napier that may hereafter he horn,” and the trustees are directed to apply the property bequeathed “ to the use of, and for the support and maintenance of my said son Thomas T. and Ms family,” that is to say, such children of his family as he might at any time have — not such as he might have at the death of the testator, or at any other fixed and definite period. The object of the testator was, to provide for his son Thomas T. and his wife, and the children which he had at the time of making the codicil, as well as those which he might at any time theregfterha.se; for he vests the property in the trustees for that'purpose, without lim itation, “forever.” Speaking of devises of real estates, Chancellor Kent states the rule to be, “ where there is a devise to A for life, remainder to his children, the children living at the death of the testator take vested remainders, subject to be disturbed by after-horn children. The remainder vests in the persons first becoming capable, and the estate opens and becomes divested in quantity by the birth of subsequent children, who are let in to take vested proportions of the estate.” 4 Kent Com. 205, 2d ed. In Doe vs. Provoost, 4 Johns. R. 61, the words of the will were, “ I devise to my daughter, Christiana Provoost, the dwelling-house and grounds she now-lives on, to hold the said house and grounds for and during the term of her life ; and immediately after her death I give the same unto and among all and every such child and children as the said Christiana shall have lawfully begotten at the time of her death, in fee simple, share and share alike.”

The construction given to this will by the court was, “ that upon the decease of the devisor, Christiana took an estate for life, and her four children then living took a vested remainder in fee ; and in case there had been any after-lx>rn child or children of Christiana, the remainder would have opened for their benefit, so that the property, in the language of the will, might he equally divided between them, share and share alike.” In the construction of wills, the intention of the testator must prevail, when such intention does not violate any fixed rule of law. What was the intention of Thomas Napier the testator, in making the codicil to his will, to be gathered from the terms of it ? Our conclusion is, that he intended to make provision fiar his son Thomas T. and his wife, and'also to make provision for the four children then in life, and such other child or children as he might afterwards have born. The children were to be educated, supported and settled, out of the property bequeathed. The whole family were to be supported out of the property, including his son and his wife, and the children educated, and when the proper time arrived for the children, to be settled, then he or she was to receive his or her share of the property from the trustees, to make such settlement.

We are to understand the term “ settlement ” in its common and ordinary acceptation. What did the testator mean by the term settlement as applicable to the children of his son? Did he mean that all the property, except what was necessary for the support of his son, and his wife and children, and the education of the children, should remain in the hands of the trustees during the life of his son, and then to be equally divided between his children? If so, why did he add, after making provision for the support and education of the children, the provision for their settlement? And when, according to the usage and custom of the country, are settlements made on children, of their property ? Usually, when the females marry, and the males arrive at the age of twenty-one years. Then, according to the intention of the testator, they would have been supported and educated, and entitled to receive from the trustees their share of the property to settle themselves in business; and such is the direction, in our judgment, given by the testator in his codicil, to the trustees.

[2.] "When Sarah C. Napier married De Lanney, she was entitled to receive from the trustees her share of the property in their hands for her settlement, and her husband was entitled to receive the same from them in her right. His creditors have the same right to the fund which he had, to be applied in the payment of his debts ; they claim through him, and the same equities attach to the property in favour of the wife, which would have attached had the husband himself invoked the assistance of a court of equity to decree to him his wife’s share of the property, in the hands of the trustees. According to the rule established by this Court in Bell vs. Bell, 1 Kelly R. 641, De Lanney, the husband of Sarah O. Napier, could not have obtained a decree of a court of equity against the trustees for his wife’s share of the property in their hands, without making suitable provision for her and her children, if any. In that case we said: “In all cases where the husband comes into a court of chancery asking its aid to acquire the possession of his wife’s property, whether it exists in the form of an equitable or legal chose in action, that court having acquired the power to act upon the subject matter, will use it, to do equity to both parties. As he seeks equity, it will hold him to do equity before it will grant it; and upon this principle he is in such cases required to make suitable provision for her and her children.” 1 Kelly R. 641, and authorities there cited.

In that case we also held, “ The assignees in bankruptcy or insolvency of the husband, also his assignees for the payment of his debts generally, and the special assignee or purchaser from him for a valuable consideration, are bound to make a settlement upon the wife, out of her dioses in action or equitable interests assigned to them, in the samejway, and to tbejsame extent, and under the same circumstances, as the husband himself would be bound to make one ; for it is a general principle that they take the property subject to all the equities which exist between the husband and wife.” 1 Kelly 642, 643, and authorities there cited.

The principles settled and declared in Bell vs. Bell we distinctly recognise as applicable to this case, and may be considered' as the settled doctrine of this Court. Before the creditors of Be Lan- [3.J ney can appropriate his wife’s share of the property bequeathed to her by her grandfather Thomas Napier, now in the hands -of the trustees, to the payment of his debts, suitable provision must be made eut of it for her support and maintenance, as well as for the support, maintenance and education of her children, if any. Whether all, or what portion of her share of the property will be an adequate provision for that purpose, must depend on the circumstances and condition of the parties, as shall be made known to the Court and jury, by which we shall direct the inquiry to be made. In our judgment, however, the provision ought to be liberal in such cases, as the bequest of the testator was evidently intended for the benefit of his grand-daughter, and not for the creditors of her insolvent husband, whose debts were not contracted on tbefaith of his wife’s property not yet reduced into Ips possession. If there should be children, atid a fair prospect for more, their education should be provided for. In Kinny vs. Udall, 5 Johns. Ch. R. 480, the chancellor says, “ The question in any case is, what is a suitable and adequate provision for the wife, under the circumstances V’ The Court has a discretion in such cases, whether it will give the whole or a part of the property to the wife. In the same case on appeal, (3 Cowen R. 606,) the court say-: “As to the- amount of the wife’s estate which shall be secured to her, that is a proper subject of reference to a Master, and must necessarily be determined by the circumstances of each particular case. The rule is, that an adequate provision be made for the wife and'the children, if any. What shall be considered adequate, must depend entirely on circumstances. In some cases the whole has been allowed the wife.”

When suitable provision shall have been -made for the wife and children in this case, if any, out of. the wife’s share of the property in the hands .of the trustees, the balance, if any,- the creditors of the husband will be entitled to have appropriated to thq payment of their debts, according to the priority of their respective demands. We shall therefore send this case back, with instructions, to the Court below, in conformity to the views expressed in the foregoing opinion. Let the following judgment, therefore, he entered.

This cause came on to be heard, on the transcript of the record from the Superior Court of the County of Stewart, and was argued by counsel. Whereupon it is considered and adjudged by the Court,’that the judgment of the Court below dissolving the injunction, be reversed, and the injunction be retained until the further order of the Court below, to be made in conformity to the opinion of this Court herein expressed.

It is the opinion of this Court, that Thomas T. Napier and his wife, are entitled to the use and benefit of two shares of the trust property, in the hands of the trustees appointed by the testator in his codicil; and that his children now born, and such as may be hereafter born, are entitled to equal shares of the balance of the property in the hands of said trustees as aforesaid, to be paid to or settled on them, as they shall respectively arrive at the age of twenty-one years, or when the females shall marry. It is therefore ordered and adjudged by the Court, that the Court below direct an inquiry to be had by a special jury, as to the amount of property in the hands of the trustees held under the bequest made by the aforesaid codicil of the testator, in trust for the persons therein named, including the amount of the two mortgages in the record mentioned ; and then, that a further inquiry be directed to be bad by a sjjecial jury, pdiat would be a suitable provision to be made for the support and maintenance of Mrs. Sarah C. De Lanney and her children, if any, out of her share of said trust property, including the whole, or such portion thereof, as may be deemed equitable and just; and that the same be decreed to her for her maintenance and support, as well as for the maintenance, support and education of her children, if any-; and after making such provision, that the balance remaining, if any, be appropriated to the payment of the debts of the husband of said Sarah C. De Lanney — the said trustees taking bond, with security, in double the amount of the sum paid to each child, conditioned to refund their respective proportions of each share in the event there should be any child or children of the said Thomas T. hereafter born, entitled to a share of said trust property; and that the creditors of said De Lanney give like bond, with security, in double the amount received by them, conditioned as aforesaid.