Bailie v. McWhorter , 56 Ga. 183 ( 1876 )

Bleckley, Judge.

1. The court dismissed the bill, on demurrer, for want of equity. The defendant contends, not that the complainants have a common law remedy, but that they have no remedy at all. He insists, through his learned counsel, that the trust is executory, and falls within the case of Edmondson vs. Dyson, 2 Kelly, 307. On account of the executory character of the trust he denies that the rule announced in Gray vs. Obear, 54 Georgia Reports, 331, that a trust estate cannot be created for the sole benefit of a full-grown man, who is sui juris, applies. We can, for the purposes of the present case, concede these positions as to the corpus of the property, and still allow the complainants to proceed against the income. Beyond all dispute, the whole income during the life of the defendant belongs to him. And if so, it ought to be applied in equity to the complainants' claim, which is, according to the allegations of the bill, for necessary supplies sold to the defendant (whilst he was in the management of the trust estate,) for hipiself and family and for the use of the trust estate. We do not rule positively that the life estate in the corpus would not be subject to such a debt. That may remain an open question. The defendant insists that it is not; and that much may be yielded without defeating the complainants, inasmuch as it appears from the bill that the income is considerable; and we are well satisfied it accords better with the scheme of the will to spare the corpus and encroach upon the income only, whilst the latter is sufficient for the purpose.

2. Were there a trustee in possession he might be directed by the decree to pay out the income as it accrues, to the complainants, until their judgment was discharged: 24 Georgia Reports, 52. But there being no trustee the object may be accomplished by the appointment of a receiver. Thus, equity is not deficient in the means of administering appropriate relief in the case.

3. There was a special demurrer for misjoinder of parties, the wife and children of McWhorter, the tenant for life, being joined with him as co-defendants. The court below made no ruling on that question, but we Were requested in the argument to express our opinion upon it. As tbe cause will proceed to subject the income alone, McWhorter will be the only proper defendant, his wife and children not being interested in the income, simply in a contingent remainder in the corpus.

J udgment reversed.