
    Joseph S. Clarke, executor, plaintiff in error, vs. Edward W. Harker, defendant in error.
    (Atlanta,
    January Term, 1873.)
    1. Execution — Property Subject Undivided Interest of Legatee. —When it is directed in a will that the estate of the testator- shall be equally divided between his five children “after deducting a portion off of the shares of William J. and Caroline E.” equal to what had been advanced to them, and it appears from an agreed statement of the facts, that the executor (the only one surviving) came into the possession of a certa-in lot, in the city of Augusta, as such executor, and as the property of the testator, and that the will had not been executed as to this lot and other property of the estate:
    Held, That the interest William J. and Caroline E. may have in said lot is not subject to levy and sale under a.judgment and execution obtained against said William J., and the husband of Caroline E., for a debt due from them.
    2. Same — Same—Separate Estate of Married Women. — -In one item of a will executed in 1840, (the testator dying shortly after-wards) property is given to his executors in trust for all the children of testator — -including a married daughter, and the husband of such *daughter being one of the executors — “for their sole .and separate use during their natural lives and to remain to their children after their death;” and in the next item of .the will two of said executors- (omitting the husband,) are appointed trustees for said married daughter, and it is immediately added, “and that her estate be held by them for the sole use .and benefit of the heirs of her body:”
    Held, That both items will be considered in construing what estate was intended to be given to such daughter, and that an estate in trust for her sole and separate use is thereby created, and is not subject to levy and sale for the debts of her husband.
    Administrators and executors. Trusts. Will. Separate estate. Before Judge Gibson. Richmond Superior Court. October Term, 1872.
    An execution in favor of Edward W. Harker against Clarke & Company, composed of Joseph S. Clarke and William J. Mealing, was levied upon “the one-fourth interest each of the said Joseph S. Clarke and William J. Mealing in a lot of land on the corner of Greene and Monument streets, in the city of Augusta.” The property was claimed by Clarke, as the executor of the last will and testament of Henry Mealing, deceased.
    Upon the trial of the issue formed, the ‘following evidence was introduced;
    
      1st. The execution with the levy thereon.
    2d. The will of Henry Mealing, deceased, executed on November 21st, 1839, and admitted to probate on January 6th, 1840, the only material portions of which are as follows:
    “4th. I desire and request that my two youngest children, Jane Teresa and Henry Lewis, be allowed a sufficient sum out of my estate to raise, board, clothe, and school them, to be equal to those now of age, raised and educated, which is as follows: William J., Caroline E., Mary Ann Mealing; which amount my executors may judge sufficient for them till they become of age, or get married, and the remainder of my estate to be equally divided into five equal shares, ‘after deducting a portion off of William J. Mealing and Caroline E. Mealing, part of which they have already received, and converted to their own use and benefit.’
    *“6th. My desire and request is that my executors be the guardians of my children now under age: Henry Lewis and Jane Teresa. My further will is that my executors be the trustees of all my children, William J., Caroline E. Clarke, Mary Ann, Henry Lewis and Jane Teresa Mealing, and that the same be always held for their sole and separate use during their natural lives, and to remain to their children after their death. It is my will, that if either of my daughters die without lawful issue, one-half of her estate to revert back to the surviving children, share and share alike: then their trustees may give her or them the testamentary appointment of the other half of her or their estate.”
    “7th. I request and desire and appoint Benjamin H. Warren and Philip H. Mantz to be the trustees of my daughter, Caroline E. Clarke, and that her estate be held by them for the sole use, benefit, and the heirs'of her body.”
    Also, the following agreed state of facts: “Joseph S. Clarke is the only surviving executor of Mealing’s will. That as such executor he came into possession of said lot as' the property of the testator, and that the will has not been executed as to this lot, and other property of the estate. The firm of Clarke & Company, composed of Joseph S. Clarke and William Mealing, was formed about 1855, and continued to do a large and profitable business until 1866, when they failed. Since that time, J. S. Clarke has been out of business, but William J. Mealing has been-employed, and still is, as the agent of the Georgia Masonic Lottery, from which he derives a comfortable support. W. J. Mealing has never married.”
    The Court charged the jury that the interest of William J. Mealing in the lot of land levied on was subject to levy and sale, and a verdict was returned accordingly. Clarke, as executor, excepted to said charge, and assigns the same as error.
    Harker excepted to said charge, and assigns error upon the following grounds:
    1st. Because the Court held that the interest of Caroline E. Clarke, wife of Joseph S. Clarke, under the will of Henry Mealing, did not vest in her husband, Joseph S. Clarke, and ^thereby became subject to the judgment rendered against him in favor of the plaintiff.
    2d. Because the Courts held that the language of the seventh item of the will of said Henry Mealing, whereby he directed the estate of Caroline E. Clarke to be held by trustees for the sole use,-benefit, and the heirs of her body, did not create an estate tail', but was simply an appointment of trustees to carry into effect the trust created by the sixth item of said will.
    3d. Because the Court directed the jury to find the interest of Caroline E. Clarke, under said will, not subject to the execution.
    Claiborne Snead ; McEaws & Ganai-il, for plaintiff in error.
    Frank H. Miller, for defendant.
    
      
      Execution. — Principal case cited with approval in Hatcher v. Cade, 61 Ga. 146.
      Same. — Principal case cited with approval in Wilkerson v. Clark, 80 Ga. 374, 7 S. E. Rep. 319.
      Same. — Principal case cited with approval in McDaniel v. Edwards, 56 Ga. 445.
      Same. — Principal case cited with approval in Wilkinson v. Chew, 54 Ga. 604.
      Same. — See generally, Ency. Dig. Ga. Rep., vol. 11, p. 475.
      Same. — See generally, Ency. Dig. Ga. Rep., vol. 5, p. 497.
    
   TrippE, Judge.

If William J. Mealing has an interest in the lot levied on, unaffected by any claim for deduction on account of the advancement made to him, as provided by the will, could he have that interest, say one-fifth, set apart or assigned to him by any process known to the law, without reference to the “other property of the estate” which has not been administered? He may have an undivided one-fifth in the whole property, this lot included. But if 'the debts of the estate be all paid, and it may be so presumed after the lapse of over thirty years, could he set up a demand for a partition of his one-fifth interest in any particular part of the unadministered property of the estate? The rights of the other legatees or devisees might require that the whole estate should be sold, or that it should be divided in kind by lot. This particular portion, an interest in which is levied on, might constitute one share to be so assigned, and in the drawing to which the parties may be entitled, it might fall to one of them and not to William J. To allow an undivided interest of a legatee or devisee in any one portion of the property of an estate to be sold under a judgment *against such legatee or devisee would defeat, without any fault on the part of the others, the right they have to a distribution in kind. To illustrate this, and the injustice of it: suppose a testator’s estate consists of five lots of land, four of them appraised at $500 00 each, and one at $400 00. Fie bequeaths them to his five children. The value of the interest of each child is $480 00. The children, and each of them, are entitled to have a partition, or a division in kind. The commissioners could, and probably would, make five dir visions of the land, and counting one lot, say number one, at $400 00, make each other share or lot pay number one $20 00, and thus make all equal, by a distribution in kind. Each devisee is entitled to have such a division, unless it be held, on investigation, to work injustice or damage, and in the case given it would be simple, cheap and just. Now, if a judgment creditor of one of the children could levy on and sell his interest, say one-fifth, in one of the lots, it would operate so as to fix that portion-or interest in that particular lot in the purchaser at the sheriff’s sale, and thus defeat such a distribution, or so encumber and complicate it as to seriously affect the rights of all the other devisees.

It is not denied that where one part of a will is in conflict with another part, the last provision is to prevail. This is so, when the conflict is such, that by no fair or reasonable construction, both provisions can stand. There is no such conflict in the two items in this will, so far as concerns the estate created in Airs. Clarke. The last of the two items does limit the trustees to two of the executors, and it thereby abrogates that part of the preceding item which includes the husband as one of the trustees. But it cannot be seriously doubted, that taking the two together, an estate in trust was created for the sole and.separate use of Mrs. Clarke, an estate not liable for the debts of her husband. It is not necessary to decide whether the children of Mrs. Clarke take as purchasers, or whether an inheritable estate vested in her. The children are not parties to the cause and no judgment would bind them. I refer to Dudley et al. vs. Porter, 16 *Georgia, 614, as illustrative of the principle, that words in a latter clause of an instrument — a deed — may serve to' explain and modify those used in, a former clause. In that case, under the rule, “that where in a deed, two clauses are in irreconcilable contradiction, the first shall prevail.” The Court below held that the words in the first part of the deed imported an intention to create an estate tail, and thereby vested a fee simple in the donee, Maria Dudley, while the latter gave her only a life estate; and as the two were thus repugnant the first, must prevail. But this Court, on reviewing the case, held that the% whole was to be taken together in construing the intention of the! grantor .in the use of the words in the first clause, that the latter clause might be explanatory of, and not repugnant to, the former, and decided that though the words used in the first clause created an estate tail, etc., yet, by reason of the words in the latter clause, the former were construed to convey only a life estate. If a subsequent clause in a deed may thus aid in the construction of a preceding clause, with equal reason may one item in a will assist in ascertaining the meaning of a testator in a subsequent provision in the same will, on the same subject matter as is provided for in that first item.

Judgment reversed.  