Carrie v. Cumming, 26 Ga. 690

Carrie v. Cumming

26 Ga. 690 | Ga. | 1859

By the Court.

McDonald J.

delivering the opinion.

The case presented in this record, arises on the will of John Carrie. Upon the face of the will, there is nothing which excites suspicion of either the capacity of the testator, fraud, or undue influence in its procurement, of the legality of its provisions or the regularity of its execution. It is caveated, however, and the allegations against it are all matters, which depend for support on extrinsic evidence. The grounds of caveat will be found in the Reporter’s statement of the case.

[l.] The subscribing witnesses were introduced, who proved the execution of the will. After this proof, the will was offered in evidence by the propounders, and the caveators objected, upon the ground, that its execution according to law, had not been proven, and because of the circumstances of suspicion developed by the testimony. The Court overruled the objection and the caveators excepted.

This Court here announced, that it had already decided that a contested will should be submitted to the jury as the subject to which the evidence was to apply; and thereupon this assignment of error was not further insisted upon. The will and allegations, if any, in support of it; and the caveat or allegations against it, constitute the pleadings in such cases, and ought, in the outset, to be placed before the jury. This proceeding imparts no validity to the will. Lucas vs. Parsons, et al. 24 Ga. Rep. 640.

[2.] One of the circumstances of suspicion developed by the testimony, relied on to exclude the will from the consideration of the jury was, that it was written by one of the execu*697tors, who was also a principal legatee, and there was no evidence that the testator knew its contents. The objection would certainly have been a good one, if the paper had been admitted in evidence as a valid will, for no evidence had been offered that the testator had given instructions for it, and that it was written in accordance with those instructions; or that he had read it; or that it had been read to him ; or that he had knowledge of its contents. Without such evidence the jury would not have been warranted in setting up the paper as a will, but this evidence was subsequently supplied. The want of it at the time the paper was offered, was no objection to its being submitted to the jury, as the subject to which the whole evidence was to apply. Indeed, as already remarked, the proper time to have read it was at the opening of the case.

[3.] The caveators proposed to prove by general reputation, that John Carrie, the testator, and. Mary Bouyer, who was a woman of color, lived together in a state of concubinage, he keeping her as his mistress. The Court below rejected the evidence, and his decision is excepted to. Independent of other objections, the relevancy of this testimony is not very apparent, as the case stands in this record. We can conceive circumstances, which, if they existed, and were proven, might entitle the proof proposed to be made, to much consideration in trying some of the issues made by the caveat. But there is a total absence of proof of the sort to which I allude. But under no circumstances and in no connection can the fact that persons lived together in a state of concubinage be proven by general reputation.

[4.] Col. Henry H. Cumming was introduced as a witness by the caveators for the purpose of establishing the 4th, 5th, 6th, or 8th ground of caveat, or perhaps all of them. Col. Cumming was one of the executors of the will, and also a legatee. While under examination he was asked by the caveators, what was his intention as to the disposition of any property which he might receive under the will of Mr *698Carrie? And if he intended to use the same for the benefit of Mary Bouyer, was not that intention based upon, or did it not grow out of the known wishes of Mr. Carrie, upon that subject? The counsel for the propounders objected to the questions and answers thereto. The Court sustained the objection and the counsel for the caveators excepted.

If an affirmative answer had been given to both questions, it does not follow that the will would have been obnoxious to any of the objections urged against it. The terms of the will are unambiguous and positive. There is no trust created thereby, for any person or any object whatever. There are no instructions to the executors. The questions propounded do not imply a conditional bequest or an undertaking on the part of the executors or legatees, to hold the property in trust for any object. It was the testator’s intention, and not-the legatees, which would vitiate the will, if its objects were illegal. But the witness under examination was one of the propounders of the will. He proposed to carry it into effect, and if it contemplated a violation of the laws of the State, he, accepting the legacy for an illegal object, would have been subject to penalties for engaging in, or contributing to the illegal purpose. He could not be compelled to answer. But if the testator knew that he could not, either directly or indirectly, according to the laws of the land, provide by will or otherwise, for the manumission of slaves, or make testamentary dispositions of real estate and slaves to free persons of color; or attempt by a secret trust to manumit slaves; or attempt by a secret trust, in his will, to secure to a free person of color the beneficial interest in slaves and real estate lying in Augusta, and he made a will, however much he may have desired it, with no such purpose, but bequeathed his entire estate to friends, with no injunctions whatever so to appropriate his property, or as to its ultimate destination, it cannot invalidate the will, if the legatees, knowing his strong desire, but being under no obligation of any sort to execute it, of their own volition, give *699the property in that way, or use it for those objects. It is their own property, and if they so apply it, they lay themselves liable to the penalties of the law, and are subject to punishment without reference to the source whence the property was derived.

After the testimony was delivered to the jury the counsel for the propounders submitted to the Court in writing, six requests to charge the jury, which were all given, by the Court. The counsel for caveators excepted to the several charges so given. The requests will be found in the Reporter’s statement of the case. The first request is in accordance with the law. “ To constitute a secret trust in devisees of land or legatees of slaves, there must have been some contract, agreement or stipulation, written or parol, between them and the testator.” What kind of evidence is sufficient to establish such contract, agreement or stipulation is not a proper subject of investigation here. If a legacy be given in the will coupled with a trust of any sort given unknown to the legatee, his acceptance of the legacy, perfects a stipulation or agreement to carry out the trust, which before acceptace was in the nature of a proposition by the testator. A proposition of this sort, for an object in contravention of the statute, would be an attempt, under the Act, and would vitiate the will. There is no proof of such thing before us.

We understand the second request to have been made in reference to the evidence in this.cause, and not to a case in which the expression of an expectation or hope of a testator, is considered as equivalent to directions which are obligatory. The request as asked literally, is the law; for an absolute bequest of property carries to the legatee the power and right of the legatee to dispose of it as he pleases, uncontrolled by the verbal expression of the hope or expectation of the testator.

The third, fourth and fifth instructions asked, it is sufficient to say, are unquestionably legal.

Making the same remark in reference to the sixth request *700made, I will add that it is not only legal, but commendable for the owner of a slave, in bequeathing her, to provide for her kind treatment, which amounts to nothing more than that while she is required to perform the service of a slave, she shall be comfortably clothed and suitably fed, that excessive labor shall not be required of her, that she shall not be unnecessarily and unreasonably chastised, and that, when sick, she shall have the nursing and medical attention which her situation requires. The law imposes these duties on all owners of slaves, and it cannot be an objection to a will that the testator who bestows his bounty on a friend, should ask or require of that friend the performance towards the slaves he gives, of the legal duties of humanity.

The counsel for the caveators asked the presiding Judge to give in charge to the jury ten different instructions, which he did. These are not excepted to of course, by the plaintiff in error. We are not therefore called on to review them, or to determine whether they are all sustained by the law, as applicable to the case before us.

[5.] The last part of the charge of the Court, stated in the bill of exceptions, taken alone and disconnected from the rest, is certainly erroneous; but the presiding Judge annexes a certificate, which must be taken in connection with it, that he does not recollect the precise words, with which the charge to the jury was concluded, but he is certain none were used to retract or vary in the slightest degree the principles or statements of law given in charge to them. This being so, the conclusion of the charge as stated in the bill of exceptions must be taken in connection with the charges founded on the objections to the probate of the will and taken with them, there is nothing in it to disapprove.

Judgment affirmed.