Walker et al. ex'ors, &c. vs. Williamson et al.

To all of which rulings and decisions of the Court, the defendants, by their solicitors, excepted and assign error.

REESE & CORBETT, for plaintiff in error.

STUBBS & HILL, for defendant in error.

By the Court.-MCDONALD, J. delivering the opinion.

The period having arrived at which the testator's estate was to be distributed, the complainants file their bill claiming to be entitled, as heirs at law of the testator, to distributive shares of parts of his estate, which they insist do not pass by the will. One of the testator's children, Philip Walker, named as a legatee in one clause of the will, died in the lifetime of the testator, leaving no issue; his legacy lapsed, they allege, and that they are entitled to a part of that lapsed legacy.

The bill was demurred to on the grounds set forth in the statement of the case. The presiding Judge in the Court below overruled the demurrer, and error is assigned on his judgment.

[1.] The complainants, as heirs at law of the testator, are entitled to a ratable proportion of that part of his estate, and that only, which did not pass to legatees under the will The negroes all passed by the second item in the will, absolutely, except seven, which the wife, by the third item in the will, was authorized to select for her own use, during her life or widowhood. They passed to the children of the testator. Grand-children cannot take by the description of children, unless there be something in the will to manifest that intention. There is nothing of that sort in this will.

[2] Nothing could pass to Philip Walker, for he is not named; and at the death of the testator, he was dead. He was not a child. Under that item of the will, then, there was no lapse into the estate of the testator, of any interest in the negroes, by reason of the death of Philip Walker in the life

Walker et al. ex'ors, &c. vs. Williamson et al.

time of testator. It is unnecessary to consider the question of lapse under the third item of the will, as the tenant for life or during widowhood, is still in life. The complainants, therefore, could take no part of the negroes under the second item of the will, and could take none as an interest lapsed by the death of Philip Walker.

[3] The fourth item in the will settles the portion of his estate to which his daughters shall be entitled, to their sepa rate use for life, with remainder to their children, &c., &c.

The fifth item gives directions as to the surplus of his crops, after supporting his family. It is to be loaned at interest until the division of his estate. By the sixth item the wife is directed to dispose of the proceeds of the sale of the crops as she may think best, so that she might be able to assist any child who may have been unfortunate. The object of the testator in giving this power to the wife, is expressed by him. If the wife should not execute the power during her life, this fund will fall into the estate at her death, and be then distributable among the children, and representatives of children, as property undisposed of by the will.

[4.] The seventh item directs that if the wife should marry, she shall not take the seven negroes, land, &c., but that an equal division should be made at the time mentioned, and she should take a child's part. To have set apart to her a child's part, the portion must have been ascertained according to the statute of distributions, and each living child, and the representatives of deceased children, must have been counted, to arrive at the number of shares. This shows that the equal division of estates, provided for by the statute, was in the testator's mind, and this conclusion is supported by the more distinct expression of his purpose, in the ninth item of the will, where he disposes of the proceeds of the sale of the stock, which might be left, after his wife had taken out what she needed, equally among his children living at the time, or their representatives, if they should be dead. Here is a disposition of the proceeds of the sale of his stock,

Walker et al. ex'ors, &c. vs. Williamson et al.

precisely such as the law makes, except that the wife is excluded. The children and representatives of children take together. Burch vs. Burch, 20 Ga. Rep. 834, 839; Jarvis vs. Pond, 9th Simon's Equ. Rep. 549. There is a good reason for the exclusion of the wife, for she was to take all the stock she needed, and it would not have been equal to have permitted her to take a part of the proceeds of the sale of the ⚫ balance.

The lands and notes are not disposed of by the will, except the notes given for the crops, and notes, if notes were taken, for the stock when sold.

[5.] There being an intestacy in regard to the lands and notes not disposed of, they must be distributed as intestates' estates, and the complainants are entitled to their share There is no necessity for an administration on the part of the estate not disposed of by the will.

The Act of 1828 declares, that the executors shall hold it as trustees for the next of kin of the deceased. Colb Dig. 327. [6.] According to the interpretation we put on the will, the entire interest intended for Philip Walker in the estate, lapsed by his death without issue in the life time of the testator. He could take no interest under the second item of the will. The children who are beneficiaries under that item are not named. The negroes are given to the children as a class, and he was not of that class at the death of the testator.

[7.] It is insisted that the negroes given by the will, should be considered as advancements to the children to whom they were given, and that they should be accounted for in the distribution. The testator directed, that all negroes lent to his children either by himself in his lifetime, or that might be lent by his wife after his death, should be brought together, at the time appointed for the division, and divided among his children. It is clear, that from some unexplained motive, he did not intend his grand-children to receive any part of his negroes. He gave them pecuniary legacies, which he may have intended as a substitute for negroes. He gave

Elam et al. vs. Garrard,

no such legacies to his children. He seems to have intended to make a distinction, and we are not authorized to overrule his purpose. Our statute applies to intestates' estates, and, therefore, can have no reference to advancements by way of legacy.

If a testator dies intestate purposely, as to part of his estate, and he gives parts of his estate to children who would be distributees of his estate if he had died intestate as to his whole property, and who would share with other children to whom nothing is given by the will, it must be presumed that he intended to give some of his children an advantage over the rest. We should disappoint his purpose, and indeed, make a will for him, if we were to hold that the legatees should account for what they received under the will, before they could share in the undisposed part of the estate. It is seen that we do not affirm all the rulings of the presiding Judge in the Court below, but we affirm his judgment in overruling the demurrer to the complainants' bill.

Judgment affirmed.

WM. D. ELAM, et ux., plaintiffs in error, vs. MARTHA N. GARRARD, defendant in error.

Persons interested in the subject matter of a suit in Chancery, ought to be made parties. Our statute makes an exception in suits for the distribution of estates, but it makes no other innovation on the rule.

In Equity, from Chattahoochee. Decision by Judge KIDDOO, February Term, 1858.

This was a bill filed by William D. Elam and his wife, by her next friend, against Martha Garrard alleging that on the

Elam, et al. vs. Garrard.

3d of March, 1831, Jacob Garrard, then in life but now deceased, of the county of Troup, in Georgia, conveyed by deed of trust to W. S. Hardin for the sole benefit of his children, Francis Elizabeth, William Allen, Albert Lewis, James Jackson, Mark Anthony, Nancy Stokes, and Martha Newsom Garrard, certain negro slaves therein named, to have and to hold the same in trust as aforesaid, during the lifetime of the said Jacob; the said trust estate to cease and determine and the said negro slaves to become the property of, and be vested absolutely, unconditionally and equally in the children. of the said Jacob, by his then wife, Martha Garrard, which he might have, at the time of his death.

Said Jacob died in 1843, and left several children before named, of whom the complainant Martha N. the wife of the complainant William D. Elam is one. At the death of said Jacob, all of the said property, the negro slaves, went into the possession of the defendant, the wife of said Jacob, who took possession of it as the trustee and natural guardian for her said children, and has had the full benefit and management of it, and still continues in possession of the same as such. That said negroes have been worth annually, and in all, the sum of ten thousand dollars, and the complainant has applied for a full acccount and settlement of complainants' part of the hire of said negroes and proportionate part of the same, which defendant has refused to give, or in any manner allow, and complainant shows she has no separate estate, and her husband has very little property.

The bill, prays that defendant may be compelled to account, and thereupon directed to pay over the same to complainants, or to a trustee &c., or that a sufficient number of said negroes be sold only, as will pay complainants' part, and the same be settled upon a trustee, for the joint use of complainants during their lives. And if he William D. Elam survives his wife Martha N. she leaving issue, then to him for life and after his death to such issue, and if she survives him, then to her for life and at her death to her children.