McDowell v. McDowell , 68 Ga. App. 363 ( 1942 )


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  • I do not think it is necessary to decide whether, under the terms of the will, a trust estate was or was not created as respects the matters dealt with in the majority opinion. My opinion is that, assuming for the sake of argument a trust was created, the petition does not show that the acts of the executor, which are complained of, were his acts as executor or as trustee. It does not show that the duties of the executor had been completed and that the estate was being operated as a trust estate by the alleged trustee. There is no allegation in the petition showing that the debts had been paid and no allegation equivalent thereto. The petition also fails to allege that a valid trust estate was created by the will in that it fails to allege that the remainder estate was left in trust for a minor, or person non compos mentis, or male person of age, who on account of mental weakness, intemperate habits, wasteful and profligate habits, was unfit to be entrusted with the right and management of property. DeVaughn v. Hays, 140 Ga. 208 (78 S.E. 844); Finn v. Dobbs, 188 Ga. 602 *Page 368 (4 S.E.2d 655); Clark v. Baker, 186 Ga. 65 (196 S.E. 750). Since the petition did not show on its face that the court of ordinary had no jurisdiction the demurrer was properly overruled.

Document Info

Docket Number: 29735.

Citation Numbers: 22 S.E.2d 851, 68 Ga. App. 363

Judges: SUTTON, J.

Filed Date: 11/18/1942

Precedential Status: Precedential

Modified Date: 1/12/2023