26 Ga. 380 | Ga. | 1858
By the Court.
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.
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.
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.