50 Ga. 181 | Ga. | 1873
On the 25th day of February, 1852, Owen Thomas, then, and at the time of his death, a citizen and resident of the county of Muscogee, made and executed his last will and testament, whereby by the third item of his will he devised and willed that: “ My negroes, Griffin and his wife, Esther, and their children, Peggy, Elizabeth and Griffin, now born, and such as they may hereafter have; Mariah and her children, Sandy, Jacob, Willis and William, now born, and such as they may hereafter have; Jack and his wife, Hannah, and the children of Hannah, Toney, Ned, Wyatt and Malinda, and the children of Malinda, Plomer, Nathan and Daphney, and such other children as she may have; Washington and his wife, Pleasant, and their children, if they shall have any; Marino and all her children, Eliza, James, Margaret, and such as they may hereafter have; Hudson, Armstead and Pearce, be conveyed to Liberia, or any other free State foreign to Georgia, unto which they severally elect to go, in which they may lawfully reside and there be forever manumitted and freed, they and their posterity.” And by the fourth item of the will said testator directed as follows: “L desire that all the residue of my negroes, my lands, stock, crops and property of every kind be sold for cash, and the proceeds of sales, along with moneys on hand, collection of debts of every class
The said Owen Thomas left as his heirs-at-law, Sophia W. Hargroves, of Macon county, Alabama, his sister, and the children of 'Mrs. M. W. Thweatt, deceased, to-wit: Jas. T. Thweatt, Robert R. Thweatt, Thacker H. Thweatt, and Julia M. Thweatt, child of Owen T. Thweatt, deceased.
The following legatees mentioned in said will, died before
Upon the facts stated, said executor, Redd, filed his bill in Muscogee Superior Court against said heirs-at-law and surviving legatees mentioned, praying for dii’ections as how to pay .out the funds in his hands, arising from the sale of the property of the estate of said Thomas, deceased. On the trial of the cause, the heirs-at-law offered to prove by several witnesses the declarations of the testator, made a short time before his death, going to show his unfriendly feeling towards some of the legatees on account of their bad conduct towards him, their abandonment of him, etc., and his general denunciation of all of them, which evidence so offered was ruled out by the Court; whereupon, the heirs-at-law excepted. Thereupon, all parties to the bill admitted that the following facts were true: That the following legatees mentioned in the will: Elizabeth, Sandy, Willis, Marino, Jack, Hannah, Neal, Wyatt, Nathan and Tony, died before Owen Thomas, the testator. That Esther, Peggy, Griffin, Jr., James, Eliza, Margaret, Malinda, Homer, Daphney, Washington, Pleasant, Hudson, Ann, Arm-stead, Pearce, Griffin, Sr., Jacob, William, eighteen in number, survived testator. That each of the eighteen were over eighteen years old at the death of the testator. That the twenty-eight persons named as legatees and negroes in the will were slaves of said Thomas, deceased, when his will was made. That those who had not previously died, accepted emancipation from the government, over two years before the death of Thomas.
The counsel for the heirs-at-law asked the Court to charge the jury as follows :
1st. That if the legatees named in the will were emancipated before the death of Thomas, they could not take under the will; that the intention of the will was to give them leg—
2d. That the legacies of all the legatees who had died before the testator had lapsed, and their shares went to the defendants, heirs-at-law.
3d. That the money directed to be used by the executors in transporting the legatees to some free country, also lapsed and went to the heirs-at-law.
4th. That the legacy given to executor, Howard, also lapsed andwent to the heirs-at-law.
5th. That the special legacy given to Marino, who died before Thomas, lapsed and went to the heirs-at-law.
6th. That there were certain conditions contained in the will which had to be complied with before the legatees could take their legacies under the will, viz.: 1st. That the negroes should continue to be his slaves until the time of his (testator’s) death. 2d. That they should be carried by his executors to some free State or country, foreign to Georgia. 3d. That the legacies were not to be paid to them until they arrived in their new homes, in some free State or country foreign to Georgia. 4th. That the testator intended to give the legacies only in case the emancipation was brought about by his will, and not by the government, and if said conditions had not been complied with, then the legacies failed, and the property went to the heirs-at-law.
The Court refused to charge as requested. The heirs-at-law excepted to the decision of the Court upon each and every point requested, and assign error thereon. And thereupon, the jury returned the following verdict, viz.: “We, the jury, find that the complainant be allowed the sum of $1,500 00, as reasonable counsel fees. We further find that Griffin, Sr., died after the testator, and left Esther as his widow, and Peggy and Griffin, Jr., his children by his wife, Esther, as his heirs-at-law. - We further find, of the negroes named as legatees in said will, in the third clause, to-wit: Elizabeth, Sandy, Willis, Marino, Jack, Hannah, Ned, Wyatt, Nathan and Toney died before the testator. We further find that, of the
And thereupon the Court decreed as follows: “This cause came on to be heard on the bill, answers of defendants, with exhibits and proof; the issues of fact were submitted to a jury who returned a verdict as hereinbefore stated. Whereupon, the premises considered, it is ordered and decreed that said complainant do retain out of said estate, as compensation for services as executor, the sum of #1,500 00, and also the further su m of # 1,500 00 as a reasonable sum for the payment of expenses incurred in employing counsel to carry said will into execution. It is further ordered and decreed, it beirig made to appear that Griffin, Sr., survived the testator, but is now deceased, leaving Esther, his widow, and two children, Peggy and Griffin, Jr., his heirs-at-law; that said executor do pay to the said Esther, Peggy and Griffin, Jr., in equal parts, the said #2,500 00, legacy bequeathed by said testator to the said Griffin, Sr. It being further made to appear that eighteen of the persons specified in the 3d clause of said will, and who were to take as residuary legatees, survived said testator, as specified and set out in the verdict aforesaid, and that some of them had children Avho survived said testator, as specified in the verdict aforesaid, in number eight, and under the age of eighteen years, at the death of testator, it is further ordered and decreed that the said complainant, after retaining said sums before
Let the judgment of the Court below be affirmed.