Harvey v. Miller

Atkinson, Justice. According to the record in this case, it became impracticable to carry literally into execution the will of the testator. His estate being involved, a considerable pjortion of his property had -first to be appropriated to [769] the extinguishment of his debts, leaving only the lauds described in the petition. The respondent applied for letters of guardianship for the minor children of the testator, and as such for a number of years has had the use of the land. In its operations it appears that he has incurred indebtedness of some kind for and on account of the estate committed to his care as guardian. "Whether upon competent authority such debts were incurred, we are not called upon to answer. Upon the •coming of age of some of his wards, he appropriated toward the extinguishment of such indebtedness the proceeds of their labor’, and was continuing so to do. 'They are entitled jointly with the minor heirs under the will to share in the profits of the estate as tenants in common. They allege that their earnings ripon the common property are appropriated wrongfully by the guai’dian to the extinguishment of the debts incurred by him, and they pray a partition of the premises. A literal execution of the will being impossible under existing conditions, it was the duty of the chancellor, in the execution of its beneficial purposes, to frame a decree which, as nearly as might be, would approximate to the general testamentary scheme. The great purpose designed to be accomplished by the testator being to keep his estate intact until the youngest child attained its majoi’ity, and at the same time, out of the estate, to provide a support for the maintenance of them all, it ■occurs to us that no better plan could have been devised for carrying into effect the real purpose of the testator ■with respect to his estate than for the chancellor, as he ■did in this case, to render a decree directing a temporary apportionment of the estate amongst the minors as they •each severally attained their majority, that they might severally enjoy each his just proportion until the time when, upon the majority of the youngest child, a final apportionment of the estate could be made. To the [770] point that the chancellor has competent authority to. make such temporary apportionment where difficulties of the character that occur in this ‘case present themselves, we cite Rutherford v. Jones, 14 Ga. 526; and Wikle v. Woolley, guardian, 81 Ga. 106. Let the judgment of the court below be Affirmed.