30 Ga. 191 | Ga. | 1860
delivering the opinion.
Littleberry- Lucas died, leaving two wills — one executed in 1845, and the other in 1855. Cincinnatus Lucas, the defendant in error, being the nominated executor of the older will, propounded it for .probate, and the plaintiffs in error propounded the other, each party entering a caveat against the probate proposed by the other party. When the two cases thus made stood for trial on the appeal, the parties, through certain of their counsel, Mr. Hill for the defendant in error, and Messrs. Trippe & Poe for the plaintiffs, entered into a negotiation for- the settlement of the whole litigation. The negotiation resulted in the taking of an agreed verdict, accompanied by an explanatory paper, the verdict written by Mr. Hill, and the explanatory paper by Mr. Trippe. Within a few minutes after the verdict had been taken, the plaintiffs moved to set aside on the ground that, by their mistake of its legal effect, the verdict, with the explanatory paper, had been so framed as not to carry out the true settlement to which they had agreed. The defendant met this motion with four objections : First, that the ground on which it is founded is not good in law, if true in fact. Second, that it is not true in fact. Third, that the proper remedy is not a motion to set aside the verdict, but a bill to reform the agreement on which the verdict is founded. Fourth, that the minor children of Cincinnatus Lucas have an interest in the verdict, and are not legally represented before the Court. The presiding Judge sustained the third objection, and overruled the motion. We think all of the objections are bad, and that the motion ought to have been granted.
1. The principle of granting relief from a mistake as to the legal effect of an instrument, is established by repeated adjudications of this Court, and also by statute. An Act of 1858, (see Acts of that year p. 74,) in attempting to do several things, does accomplish this: it converts into statutes, from the time of its passage, all such decisions of this Court as had been made before its passage, with the concurrence of a full bench. Now, the case of Wyche and wife vs. Greene, in 11 Ga. Rep., 159, and again in 16 Ga. Rep., 49, had been decided by a unanimous full bench long before the passage of that Act; and the very point decided in it, is the principle in question. In that case, a man made a deed of
2. Lid the parties mistake the legal effect of the verdict in this ease? The verdict sets up as a will, a part of the 14th item of the will of 1845, giving certain land and negroes to the children of Cincinnatus Lucas, and then declares an intestacy as to the rest of the estate. This gives the land and negroes as the will gives them; that is, from the time of the testator’s death, with the natural increase of the negroes from that time, and with eight thousand dollars of rent and hire which had accrued between that time and the time of the settlement. The explanatory paper excepts the natural increase^ of the negroes from this effect of the verdict, but is silent as to the rent and hire. The verdict, therefore, gives the Lucas children the land and negroes named in that part of the will which is set up, together with the rent and hire. Now, we think it is perfectly clear that the settlement which was intended to be carried out by this verdict, gives these children only the land and negroes as they stood at the time of the settlement, without any precedent rent or hire. The history of the negotiation, as given by all three of the negotiators, proves this beyond all doubt. Mr. Trippe opened the negotiation by offering Mr. Hill a round sum of twenty thousand dollars for the Lucas children. Mr. Hill rejected the offer, and made a proposition of his own, which was very much discussed and finally accepted by the other side. The question, What was that proposition ? covers the whole dispute. It is important to remark, that it covered the whole estate of which this rent and hire were a known part — giving a certain specified part to the Lucas children, and all the rest of it, without specification, to the heirs at law. Under this proposition, there cannot be an absence
3. And this brings us to the remedy. There is no effort here to reform an agreement nor to enforce one. A bill in
4. The children of Cincinnatus Lucas are not heirs at law of Littleberry Lucas, and have no interest in this verdict, except as legatees under the will of 1845. Of that will, Mr. Cincinnatus Lucas, the defendant in error here, is the nominated executor and propounder, and the motion to set aside this verdict is but a part of the litigation involved in conducting the caveat to a final adjudication. We cannot doubt that the nominated executor and propounder of á will is the legal party, in behalf of the will and those-who claim under it, to conduct the litigation of a caveat from the beginning to the end of the chapter. It was intimated that while
Judgment reversed.