52 Ga. 648 | Ga. | 1874
On the 10th day of March, 1859, Peter McLaren, his wife, Julia, and Robert H. Green, as trustee for said Julia, executed a deed, in which it was provided that on account of unhappy differences between the said Peter and his wife, they would thereafter live separate. As a provision for the wife, the said Peter conveyed, by the deed, certain property to the trustee for the use of the wife for life, and also covenanted to pay to the trustee for her, $1,500 00 annually, in quarterly installments, and that a bond in the sum of $20,000 00 should be by him executed to the trustee, with the condition that if any two consecutive quarterly payments of said annuity should not be made, “ then the said sum of $20,000 00 should be paid to the wife, absolutely, to be held by her as an absolute estate instead of 'the annuity and the life estate therein provided for her support and maintenance.” On the same day the bond
1. One ground for the motion is, that on the trial, Bradford, the administrator, was permitted by the court to prove-that Julia McLaren was owing debts at her death. This was-objected to by defendant’s counsel, it being claimed that the highest evidence was the debts themselves. We are not certain that it was incumbent on the plaintiff to prove affirmatively that there were any debts. But be that as it may, the witness testified as of his own knowledge that attorney’s fees, physician’s bills and merchant’s accounts were owing, and the amount of them. On such an issue, it is sufficient to show that claims against the estate exist, and as the creditors are-not parties, full evidence that the claims are in fact legal and valid claims, will not be required.
2, 3. Plaintiff introduced the defendant as a witness, and. it was objected by himself that he could not be forced to tes
4. It was stated in the argument that defendant demurred to the declaration on certain grounds, but neither the record or bill of exceptions shows that fact, and we do not consider that point. It was.further objected by the defendant that the $20,000 00 was not recoverable as liquidated damages, but that the provisions in reference thereto were to be construed only as a penalty in the event that the annuity was not' paid as agreed in the deed of separation and the bond, and was not recoverable in this action, and this was made as an objection to the admission in evidence of the bond and the other paper. All of these papers were executed at the same time; at least, the deed stipulated that the bond should be given; they bear date the same day, and each of these two refers to the other, containing each the same obligation as to the payment of the annuity, or on failure thereof to pay the $20,000 00, to be held by the wife, and, as is stated in the deed, it was to be instead of the annuity and the life interest in the other property therein conveyed. The declaration alleges the execution of both the deed and bond, and sets out the respective stipulations in both as to the quarterly payment of the annuity. The evidence shows that at the death of the wife, a larger sum than the verdict gives was due of the unpaid amount. If, then, on the breach of the bond, as alleged, the forfeiture recoverable was only as a penalty, and that was the value of the unpaid annuity at that time, that would have been greater than the amount of the verdict. So that, whether the amount recoverable was to be ascertained on either basis — that is, on the basis of the forfeiture (so to call it,) being a penalty, or liquidated damages, the defendant cannot complain as to the amount of the verdict. The deed and bond constitute but one agreement, so far as they concern the payment of the annuity
5. Another point made and taken in the motion for a new trial, was the refusal of the court to charge as requested by defendant, that "if Julia McLaren was a resident of the state of Alabama at the time of her death, and had no property in the county of Muscogee, the ordinary had no right to grant administration on her estate, and the letters are void, arid plaintiff has no right to recover.” The record does not show in what county the letters were granted. The court charged the substance of the request, omitting the specification of the county. But admit that administration was granted in the county of Muscogee; the trustee lived in that county, he
Judgment affirmed.