Dunn v. Bryan

John Waters died testate, leaving three daughters. By the eleventh item of his will he directed that the residue of his estate, after the payment of debts, and for certain improvements, be invested in bank stock, and that his executors hold it in trust for the equal use and benefit of his daughters aforesaid, during their respective lives, and after their death, then in trust for the use of the children of his said daughters, and if cither of his said daughters died without issue, her share to go to her sisters, and if either died leaving issue, her share to go to her issue. One of the daughters died without issue. Another died leaving one child, the wife of plaintiff in error ; the third is still in life. Held : that the three daughters were tenants-in-common under this item of the will, and that the two survivors took the share of the sister who died without issue, equally, in fee simple, and upon the death of the second sister, her daughter took her share in like manner, and became a tenant-iü-common with the surviving daughter of the testator.

Equity. Teuants-in-common. Decided by Judge Flemming. Chatham county. Chambers. March, 1868. This case is as follows: Plarriet Bryan averred that in 1835, John Waters, her father, departed this life, leaving a will, with a codicil attached, and that George W. Anderson, William W. Gordon and William IT. Cuyler were appointed therein as his executors. By the fourth item of said will, the said testator devised the two (2) lots of land, numbers five and six, Eyles Tything, Heathcote Ward, and also lot number ten, First Tything, Reynolds’ Ward, all in the city of Savannah, said county of Chatham, and all improvements on said lots, in trust, for the use of his daughter, Eliza Waters, during her life, and after her death, to and for the use of her children, if any she should have, and in default of children of the said’ Eliza, living at her death, then in trust to and for the use of his dauthers Jane A. Bruen and complainant, for their respective lives, and after their death, then in trust to and for the use of the children of the said Jane A. Bruen and of complainant, share and share alike, forever. - By the fifth item of said will, testator devised as follows: “ It is my will that my executors have and hold my lot number ten, (10) Eyles Tything, Heath cote Ward, forever, in trust to and for the use of my daughters Jane A. Bruen and Harriet Bryan, for and during their lives, and after their respec-; tive deaths, then in trust to and for the use of the child or children of my said daughters, Jane A. Bruen and Harriet Bryan, their heirs and assigns, forever, share and share alike.” The tenth item of said will is as follows: “ It is my will that my executors hold and have my railroad stock in trust, to and for the use of my daughter Eliza Waters, for and during her life, and after her death, then in trust to and for the use of Eer children, if any she have, and if none, then in trust to and for the use of my daughters, Jane A. Bruen and Harriet Bryan, for and during their lives, and after their deaths, then in trust to and for the use of their issue, share and share alike.” The eleventh item of said will is as follows: “ It is my will that my executors invest all the rest and residue of the proceeds of my estate, and all moneys of my estate, which shall remain after the payment of my debts and the costs and charges of the improvements before directed to be .made on my lots numbers six and ten, Eyles Tything, Heathcote Ward, in bank stock, and that they have and hold the said stock in trust, for the equal use and. benefit of my daughters aforesaid, during their respective lives, and after their death, then in trust for the use of the children of my said daughters, and if either of my daughters die without issue, her share to go to her sisters, and if either die leaving issue, her share to go to her issue.” Soon after the death of said testator, to-wit: on the fourth day of January, in the year eighteen hundred and thirty —, said Cuyler and Anderson were duly qualified as executors of said will, the said Gordon declining to accept the said trust, but the whole and sole execution of said will has been conducted and performed by the said Anderson, from said date of qualification and receiving letters testamentary, to the present time. Anderson, as such executor, very soon after his qualification, had erected on said lot number ten, Eyles Tythingy Heathcote Ward, a-two sfeny brick building, in accordance with the directions of testator, contained in the fifth item of his said will, and also a three story brick building on lot number seven, Eyles Tything, Heathcote Ward, (which said lot number seven is the lot which, by mistake, said testator designated, in the fourth item of said will, as lot number five,) in accordance with the directions of said testator, as-given in the fourth item of said will. Testator, at the time of his death, owned a large number of shares of the capital stock of the Central Railroad and Banking Company of Georgia, the number being unknown to complainant, and in pursuance of the instructions given by said testator, in the ninth and eleventh items of said will, the said executor, Anderson, disposed of the property in said last mentioned items named, and invested a portion of the proceeds of such sale in bank or railroad stocks, for and upon the uses named in the said eleventh item of said will, but in what stocks and in what amounts such investment was made, she is not informed. Said Eliza Waters, one of the legatees under said will, never married, and died in the month of-in the year. eighteen hundred and sixty-five, without ever having borne a child, and the said Jane A. Bruen, another legatee under said will, died in the month of July, in the year eighteen hundred and sixty-seven, leaving but one child surviving hex’, and that said child is a daughter, and is now, and was at the death of the said Jane A. Bruen, (who, after the death of said testator, and before her death for many years, had married one-Brown,) the wife of Alexander Dunn, who. is now a citizen of the State of New Jersey, and resident of the city of Trenton, so that there remains living only complainant, of the thx-ee said legatees, who take an estate-fox’-life under and by virtue of said will, in all the •estate- devised an,d bequeathed by said testator, in the said fourth, fifth, ninth, tenth and eleventh items of said will. Since the death of the said Jane A. Brown, complainant, considei'ing and believing herself to be the only legatee under said will, who is. and since the death of the said Jane A.. has been, entitled to receive and enjoy the rents, issues, dividends and incomes from the real estate, and stocks, or other personal property named in the fourth, fifth, ninth, tenth, and eleventh items of said will, or which has or have been purchased by said executor with funds arising from the sale of any of the property named in the said ninth and eleventh items of said will, has called on the said executor, George W. Anderson, and requested him to pay over to her any and all monies which he had in possession, arising from the rents, dividends, and income from said real and personal estate, and he, the said executor, would continue for the future, and during the remainder of her natural life, in compliance with her understanding of the true intent and meaning of the said testator’s said will, to pay over said rents, dividends and income to her, as belonging to her in her own right. But the said executor, combining and confederating with the said Alexander Dunn, absolutely refuses to comply with said reasonable request, the said executor pretending, and the said Alexander Dunn claiming, that the said Dunn, by virtue of his marital rights, acquired by his said marriage with the said only surviving daughter of the said Jane A. Brown, deceased, is now, and ever since the death of the said Jane A., has been justly entitled to take, receive, and enjoy, in his (the said Alexander’s) own right, all the one-half portion of the said rents and income which the said Jane A., as a co-life-tenant with complainant, was entitled to, and would receive, in her own right,' were she, the said Jane A., now living; and the said executor pretends that complainant is entitled to no more of said rents, income and profits, than she would be entitled to receive were she, the said Jane A., still in life; whereas, she charges the contrary thereof to be true, and that she is justly entitled to receive from said' executor the whole amount of said rents and income, for and during the remainder of her natural life. .To this a copy of the will was attached as an exhibit. The-parts of it not already shewn are as follows : In the name of God, amen. I John Waters, of the city of Savannah, being of sound and disposing mind and memory, but weak in body, do make this my last will and testament. First. I w.ish that all my just debts aud funeral expenses be paid. Second. I give and bequeath my negroes, Maria, Sandy, William, Adam and Nelly to the Female Orphan Asylum of the city of Savannah, on condition that said corporation exact no service from them, and only the sum of five dollars from each per annum. Third. All the rest and residue of my property, real and personal, in possession or in action, and all monies, stocks and debts, I give, devise and bequeath to my executors, hereinafter named, forever in trust, to and for the uses hereinafter appointed. Sixth. It is my will that my executors have and hold my lot on Broughton street, number four, (No. 4,) Liberty Ward, and the improvements thereon,, in trust to and for the use of my daughter, Harriet Bryan, for and during her life, and after her death, then in trust for her children, their heirs and assigns, share and share alike. Seventh. It is my will that my executors have and hold my lot number nine, (No. 9,) Second Tything, Anson Ward, adjoining Ur. Reid’s, in trust to and for the use of my daughter, Jane A. Bruen, for and during her life, and after her death, then in trust for the issue, if any she have, at her death; and if none, then, after her death, in trust to and for the use of the children of my other two daughters, their heirs and assigns forever, share and share alike. Eighth. I give and bequeath to each of my said daughters, two negroes, to be selected by them from my gang, to be held by my executors in trust for them, respectively, during their lives, and after their respective deaths, to their respective children, if any they have, and if none, then to my grand-children, share and share alike. Ninth. It is my will that my executors sell and dispose of, at public or private sale, my lot number nineteen, (No. 19,) Columbia Ward, also my plantations and all other of my real estate, not before disposed of by this will, and all the remainder of my slaves, and that unless the negroes be sold with the plantation, that they be sold -in families — all this I leave to the discretion of my executors. Twelfth. I nominate, constitute and appoint my friends, William H. Cuyler, Geo. W. Anderson, William W. Gordon, or such of them as shall qualify on this, my will, the executors of my last will and testament. Thirteenth. It is my will that the instalments on my railroad stock, which shall hereafter b.e called in, be paid by my executors out of the residue of my estate. Fourteenth. It is my will that my lots in town, given above to my daughters, be never sold by any order of Court, consent of parties, or in any other manner, but always be held for the trusts before named, and in the event of death or disability of all my executors, without representation, the Superior Court of Chatham county appoint a trustee to cany into effect this will. JOHN WATERS. j>. s.] It was attested properly. The codicil, made the day after the will, (15th September, 1835,) only corrected a mistake or two in the description of the lots. Anderson, by his answer, admittted all of said alleged facts, and discovered as to the stocks, that testator, at his death, had seventy shares of stock in the Central Railraod and Banking Company, upon which, two stock dividends had been declared, to-wit: On the 15th of January, 1855, seven shares, and on the 1st of March, 1860, nine shares, making the aggregate eighty-six shares; that, according to the eleventh item of the will, he had purchased one hundred and twelve shares Planters Bank stock, thirty-two shares State Bank stock, twenty-five shares Marine Bank stock, and one hundred and fifty shares Central Railroad and Banking Company stock, which had been increased by a stock dividend of eighteen shares of said stock, making an aggregate of one hundred and sixty-eight shares. He admitted his refusal to pay as charged, but, denying all combination, etc., said that Dunn and his wife claimed the other half of said rents, etc., and he would not pay out the same without direction from the Court. Dunn also answered the bill, not denying the statement of facts, but contending that the claim set up by him and his wife was right under the law. Upon these pleadings, (there being no fact in dispute,) the parties consented to try the same before the Judge in Chambers. After argument had, he decided that complainant took a life-estate in the entire property, mentioned in said 4th, 5th, 10th and 11th items of said will. And this is assigned as error.