Brown v. Sockwell, 26 Ga. 380

Brown v. Sockwell

26 Ga. 380 | Ga. | 1858

By the Court.

McDonald, J.

delivering the opinion.

Lucinda Sockwell, the wife of Edwin B. Sockwell, was the daughter of James Head. She was twice married. She first intermarried with Jesse B. McIntosh, by whom she had three children : John T. McIntosh, Margaret, the wife of Isham S. Brown, and Sarah Daniel, the wife of Thomas S. Treadwell. Jesse D. McIntosh having died, she married the defendant Edwin B. Sockwell, by whom also she had children. After the second marriage, and the birth of several children, James Head, the father of Mrs. Sockwell, died intestate. There was no administration on his estate. The heirs at law agreed to distribute the estate without an administration. At the distribution the defendant Edwin B. Sock-well received the whole share to which his wife and her children of both marriages were entitled under the Act of 1845. The complainants, children of the first marriage, bring this suit for the recovery of their part of the share received by the defendant.

The defendant in his answer denies that he received the shares of the complainants in the estate of the said James Head, on the contrary, he says, he did not receive the full share coming to his wife, that he gave a receipt for a larger sum than actually came to his hands. The defendant insists in his answer, that he is not accountable to the complainants, but that they must look to the administrator of their deceased father’s estate, and he claims an allowance for board, clothing and other necessaries furnished the complainants during their minority.

[1.] The complainants, at the hearing of the cause, gave in evidence the defendant’s receipt for the amount received by him at the division of the estate. The defendant offered *385in evidence a copy of the same receipt, together with a memorandum entered thereon as follows: “ Copy of amount given at division $343 99.” The counsel for the complainants demurred to this evidence. The Court rejected the copy receipt, but admitted the memorandum. The decision of the Court admitting the memorandum is excepted to. It does not appear that there is any memorandum to the original receipt or that there ever was such a memorandum attached to it; nor does it appear in whose hand writing it was made. There is certainly no reason why it should have been received as evidence to bind the complainants. It does not appear that it was not made by the defendant himself. The defendant is certainly not accountable for more than the complainant’s portion of the amount which came to his hands, either in money, property, or his own debt to the estate of the intestate Head, but that memorandum is no proof, as the case is presented in the record before us, that the sum mentioned therein did not come to his hands.

On the finding of the jury for the defendant, a motion for a new trial was submitted by counsel for the complainants, Avhich Avas refused by the Court, and the decision of the Court on that motion is excepted to. The admission of the memorandum in evidence Avhieli is made the first ground in the motion, has already been disposed of, and on that ground the motion ought to have been granted.

[2.] We think that the Court erred in its charge to the jury, that the law presumed that the estate was in debt, and that before complainants could maintain their suit, it must affirmatively appear that there Avere no debts. The estate Avas distributed without administration, and Ave hear of no objection on the part of creditors. But the defendant received the amount in his hands as the distributive share of one of the heirs at law of the intestate, viz : the share to which his wife Avould have been entitled if she had remained single or had had no child after marriage. By larv, that share was divisible among herself and children, born at the time of *386the death of the ancestor from whom it was inherited. For them, therefore, it was received and held in trust, and no creditor had any interest therein. It is true, that if there had been creditors, they would have had the right to pursue the assets, but it cannot be an objection to the defendant’s responding to those for whose special benefit he held the property, that there may be creditors who have a right to pursue the effects. It was for him to show, not only that there were creditors, but that they had notified him of their claims.

[3.] "he Court further charged the jury that the defendant liad the right to appropriate the principal and interest of the sum claimed by complainants, to the payment of a debt for board, &c. due by them. The defendant, had married the mother of complainants, who had little property. They were then-small, and continued to live with their mother and stepfather, who fed, clothed and gave them what schooling they got. It does not appear that they had a patrimony capable of supporting or educating them. It did not exceed the fourth-part of one hundred and' forty dollars to each, and whatever it was, passed to the hands of the defendant. He was neither their guardian nor the administrator of their deceased father’s estate. If he had been either, he could not have expended more than the income in their maintenance and education. This is the inference from the statute. If the income was not sufficient for that purpose, the Court ought to have bound them out. Freeman and wife vs. Tucker, 20 Ga. Rep. 9. There is .very strong authority for saying that if a widow having children, marry again, and was of sufficient ability before the seeond marriage to support them, the husband shall be charged to maintain them, l Black. Com. 440. I believe, however, that the reason of the thing is against this, as well as the more recently adjudicated cases 4 Tenn. Rep. 118. But the defendant, I apprehend, cannot be in a better situation than if he had been the guardian of complainants. A guardian cannot encroach upon the capital of his ward for his maintenance and education, nor can *387he or any one else make him his debtor against his will. He certainly would not without request, involve him in debt so as to consume any estate which he might subsequently acquire. The maxim, that once a gratuity, always a gratuity, applies with all its force to such a case. If the complainants, on attaining majority had promised to pay the expenses of the defendant, their step-father, in their maintenance and education, without fraud, imposition, or improper influence, that he did incur expenses for these objects, would be a sufficient consideration to support an action. Cooper vs. Martin, 4 East. 82. There is no evidence of a promise in this case. By a late statute in England, passed, in the reign of William 4th, every husband is made liable to maintain the children of his wife, born before his marriage with her, whoever was their father, and whether the children are legiti-' mate or illegitimate, until the children attain the age of sixteen years, or until their mother’s death. We have no such statute here, and I think that by the construction of our , statutes, whenever an infant is entitled to an estate, the income of which is sufficient for his maintenance and education, he is responsible for such expenses, when contracted in a regular way by executor, administrator or guardian ; that if the income of his estate is incompetent to his support during his minority, he should be bound out, and that for expenses gratuitously incurred by others, for him, he is not legally liable.

The judgment of the Court below ought, we think, to be reversed and a new trial granted, on the two first grounds taken in the motion.

Judgment reversed.