Davis v. Hunter , 23 Ga. 172 ( 1857 )

By the Court. —

Lumpkin, J.

delivering the opinion.

The proper interpretation of the deed made by old man Burks is, that the title or “inheritance” as he calls it, to the property conveyed by the instrument, was intended to be given to his grand children; and that they, together with their mother, his daughter, and her husband, should enjoy jointly, the usufruct during their mother’s life. And a trustee was appointed to protect the property and see that the purpose of the donor should not be frustrated. Now the daughter having lived, likely beyond the time foreseen by the father ; in order to carry out his design, it has become absolutely necessary^ that the trustee should have the possession and control of the negroes. While the children were young, all might be kept together, as all were sharing the benefits in common. But this period is past; and in any view of Mrs. Davis’s rights and interests, the trustee is entitled to the possession of the slaves. We see nothing in the deed whieh gives to the mother any other or greater interest, than as joint tenant or tenant in common with her children.

Our judgment is, that there is no equity in the bill; and that the injunction ought to have been dissolved. It should have been dissolved for the further reason, that every matter set up in the bill, can be made fully available at law.

Judgment affirmed.