Hatcher v. Smith

Fish, J. 1. The first headnote sets forth the material parts of the will under which John L. Smith, as trustee, claimed the property levied upon. We deem it unnecessary to express our opinion as to whether or not, under the terms of the will, there was a subsisting executory trust when the claim was interposed, and whether John L. Smith had a life-interest only in the usufruct or in the corpus of the estate. For, granting that the trust, if any, was executed, and that, under a proper construction of the will, he had a legal life-estaté in the corpus of the land and railroad-stock in question, it was certainly too vague and uncertain to become the subject of levy and sale, because at the date of the levy and when the claim was interposed and tried he had two children then in life, with a possibility of becoming the father of more, and so long as such a possibility [846] •continued his interest would be too shifting and indefinite to be .subject to levy and sale. Until his death it could not be known how many children he would have and how many, if any/ would be in life at that time. Should the one-fourth interest •of the life-estate be sold under this execution against him, and should other children be born to him, they would be deprived ■.of any interest in the one-fourth sold, or be driven to the expense.of having to bring suit for same, with risk of loss of income, etc. 2. The case at bar is distinguishable from that of Bozeman v. Bishop & Pritchard, 94 Ga. 459. In that case the property was ■conveyed to a father by name and to his lawful children, without naming them, their heirs, etc., for the use, support, and maintenance of the father, and for the support and education ■ of his children during the life of the father, and at his death ■to be equally divided amongst his lawful children. The father -at the time the conveyance was executed had two children then hr life. It was held that the father and each of the children ■ took, under such conveyance, an estate for the life of the father, with remainder to the children, and that the father’s life-estate in the property was subject to levy and sale for his debts. ' There was an estate to the father and his two children then liv■ing, for and during his life, with remainder to those two children. In the case at bar the property is given for the usé of ■the father, his wife and his children, for and during his natural life, and after his death to be equally divided between any - children he may have, it being for the support of himself and family. The father’s interest was contingent upon, and subject to be diminished by, after-born children, whose rights ■would be the same as those in life when the levy was made. ‘There was no such contingency in the case in the 94 Ga., supra. There the father’s interest was more definite, and ■ could be sold without interfering with the rights of his children • then living or to be born, as the latter would have no interest .in the property. Judgment affirmed. All the Justices concurring.