Ware v. Trustees of Emory College

Crisp, Judge. In 1876, Selina A. Few departed this life. Whereupon plaintiffs in error, being the grand-children and representatives of grand-children of Thomas Carr, deceased, brought their bill in Newton superior court against the defendants in error, alleging that the remainder created by the will of Thomas Carr had vested, that the railroad stock, bought with the proceeds of the Alabama lands, passed under the will of Carr, that the railroad and college had notice of their interest at the time of taking, etc., and prayed, amongst other things, that the college be decreed to transfer the stock to complainants, pay dividends since 1876, and that full and complete title to said stock be decreed in complainants. To this bill defendants did not answer, but pleaded former recovery. The plea alleged that at the September term, i860, of Newton superior court, the same matters and.things were adjudicated on a bill filed against the same defendants and I. [294] L. Graves by the same complainants, except that M. A. Veitch, E. W. Carr and Susan Carr are now dead and represented in this suit by their legal representatives. The suit pleaded in bar was the bill of August 15th, 1856. Complainants filed a traverse of this plea on the grounds, amongst others, that the judgment pleaded in bar was not between the same parties in the same right, and that there had been a former adjudication on the subject of the Alabama lands in Clarke superior court on a bill filed in 1855, to which all the present defendants, or their privies, were parties, by which it was settled that the Alabama lands did pass under the will of Thomas Carr, and the proceeds were subject to the limitations thereof, and that it was not decided otherwise in the suit at bar. The bill of 1855 appears in the statement of facts. On this traverse issue was joined, and the case went down to the jury. Under the charge a verdict was rendered for defendants and a decree entered accordingly. Complainants below excepted, and the case is brought here to review that finding. We do not think the heirs and representatives of Thomas Carr took these Alabama lands under his will. After his death the government granted them, not to Carr, but to his heirs and representatives; none of the limitations established by the will apply to this property. Mr. Few, by virtue of his marriage with Selina Carr, became one of the heirs of Thomas Carr, and as such he was entitled to receive the proceeds, or his part of the proceeds, of the Alabama lands. He did not assert this right. W. A. Carr was the executor of Thomas Carr ; as such he sold these Alabama lands, retaining the part to which Mr. Few was entitled, holding it as trustee for Mrs. Few. In 1836, upon his own application, he was discharged and I. L. Graves was appointed trustee in his stead. The decree appointing Graves provided “that for and on account of the lands sold in Alabama by the said W. A. Carr and granted by congress to the heirs and legal representative [295] of Thomas Carr, deceased, that said W. A. Carr pay-over to his successor, said I. L. Graves, in trust for Mrs. Few, $5,258.25.” This Alabama land, or the proceeds, was not trust property until this decree. It belonged to Mr. Few. While Graves was trustee, with the consent of Mrs. Few, the cestui que trust, the property in litigation, the stock, which Graves had received under the decree in lieu of the money due Mrs. Few from Carr, was transferred to the trustees of Emory college, Mrs. Few receiving in exchange for said stock good and collectible notes amounting to four thousand two hundred dollars, and a lien on a house and two lots in the city of Columbus; the property so received by her she deposited with Graves, her trustee, to be held by him for her instead of said stock. In 1842 Mrs. Few becoming dissatisfied with her trustee, filed her bill in Newton superior court, praying for his removal and the appointment of another in his stead; in this case a decree was rendered, approving the conduct of Graves in converting the railroad stock into other funds, removing him as trustee, and appointing Mr. Few. He accepted the trust, thereby estopping himself from denying that this was trust property, made so by the decree of the court by his consent, not made so by the will of Thomas Carr. Mrs. Few was the sole beneficiary of the trust, and this court has decided that, as against her, the college has a good title. 32 Ga., 557. Unless the Alabama land passed under the will of Thomas Carr complainants have no case. We are clearly of the opinion that they did not so pass, and we are gratified to find that in this view we are sustained by so distinguished a jurist as Judge Lumpkin ; in 19 Ga., page 70, when discussing the will of Thomas Carr he says : “ The Alabama lands, it is true, were sold by William A. Carr as executor of his father, and the money invested in Isaac (a slave) and railroad stock. But if these lands were granted by the government directly to the heirs of Thomas Carr, subsequent to his death, then this fund could not be followed and affected by the trust in the will.” Again, [296] in 32 Ga., page 566, on the same subject he says : “ The heirs of Thomas Carr, excluding William A. Carr, the executor, sustained a great sacrifice in the premature sale of these lands, and that too under the executor’s tirle, which was not worth the paper it was written on.” Complainants insist that the verdict and decree rendered in-1855 on the bill of Carr vs. Avery et al., is an adjudication that the Alabama lands did pass under the will of Carr, and these defendants are bound by that decree. They are not bound unless they were parties or privies. We cannot see that they were either; the trustees of Emory college had owned this stock more than ten years before that bill was filed. We think, too, that the adjudication on the bill of 1856 was a complete bar to this bill, as all the rights of complainants were determined therein. See 32 Ga., 557. Judgment affirmed.