64 Ga. 32 | Ga. | 1879
On the 23d of April, 1878, three sisters — Victoria Mun-roe, Maria Gray and Missouri Overton — brought assumpsit against Laura Phillips as administratrix of Pleasant J. Phillips, deceased, in Muscogee superior court. The declaration alleged that the defendant’s intestate, as guardian of the plaintiffs, received from Iienry Lowe, their reputed father, the sum of $4,268.76, on the first of January, 1854, to and for the use of the plaintiffs ; that he undertook and promised to pay the plaintiffs said sum when requested ; that neither he, while in life, nor his administratrix, since his death, has paid the same, etc. The defendant pleaded, first, non-assumpsit; second, that at the March term, L868, of the court of ordinary of Muscogee,county, which court had jurisdiction of the trust, the intestate was by the judgment of that court discharged from his .trust .as guardian
The case was tried, and'the jury found for the defendant. The plaintiffs, not moving for anew trial, su-ed out a writ of error on the rulings and charge of the court, and its refusal to charge. The evidence at the trial disclosed the following state of facts: The plaintiffs were the negro slaves of Henry Lowe, and they, together with their brother, Polk, were his reputed children by Sophy Lowe, a woman of color (his own slave),; that in the year 1854, the defendant’s-intestate received from Henry Lowe $14,000.00 for Sophy and her four children, of which sum $L000.00 each was for her and the three girls, aud $10,000.00 for Polk, the son - that this fund was not turned over by Lowe to the intestate by deed, will or other writing, but it was in divers notes on good and solvent persons, and the notes were delivered in the presence of a witness that Lowe had previously made a will providing for Sophy and her children, but being advised that it was not lawful to- bequeath property to- slaves, he gave the fund into the hand of the intestate in the manner above stated ; that all this occurred- in Georgia, where all the parties resided; that Lowe died in July, 1854, and not long thereafter, perhaps in 1856 or 18-56, the intestate sent Sophy and the plaintiffs to Washington, D. C., and Polk to Pittsburg, Pa., or they went at his instance, he paying their expenses ; that the purpose was for Sophy to reside in Washington and educate her children, but she soon concluded to return to Georgia, and did return in two or three weeks,
The several propositions excepted to in the charge’ of the court were in substance as follows : 1. That a guardian is not estopped by his returns. 2. That if the plaintiffs were slaves in 1851, and if the fund claimed was at that time turned over to Phillips for their use and benefit, as part of a scheme for their emancipation, and for their support afterwards in Georgia, the gift was void, and plaintiffs cannot recover. 3. If the settlement was without fraud it was final, save that it was subject to be opened by the minor wards within five years after they arrived at majority, é. That the limitation of ten years does not apply. 5. That if the guardian received Confederate money when he received it for himself, and when other prudeut creditors received it, and if he afterwards invested it in Confederate bonds, in good faith and as the best that could be done at the time, then he would not he liable; and more especially, if without fraud he tijrned them over to Munroe, who received them in satisfaction. One of the exceptions is to the refusal of the court to charge, at the plaintiffs’ request, as follows: “ If Lowe placed money in Phillips’ hands when the plaintiffs were slaves, for their benefit, and if the
Cited by counsel for plaintiffs. On change of guardians, Cobb’s Dig., 985, 977; Code, §1811. On estoppel by returns, 11 Ga., 262; 25 Ib., 696 ; 1 G’rl’f on Ev., §§207, 208 ; 1 Bos. & Pull., 293; Code, §3753. On period of limitations, Code, §§2922, 2926, 2931.
Cited by counsel for defendant. On gift to slaves, 6 Ga., 539 ; 20 Ib., 338 ; 26 Ib., 225, 625 ; 30 Ib., 253, 275 ; 38 Ib., 655 ; 46 Ib., 361, 399 ; 58 Ib., 118 ; 61 Ib., 248. On change of guardians, Code, §1848 ; Cobb’s Dig., 985, 999 ; and sufficiency of recitals in the order, 47 Ga., 195 ; 52 Ib., 604; 56 Ib., 307, 308. On limitations, 54 Ga., 500; 55 Ib., 35 ; 56 Ib., 416 ; 58 Ib., 382.
Judgment reversed.