4 Ga. 445 | Ga. | 1848
By the Court.
delivering the opinion.
In 1839, Marshall Keith, of the county of Columbia, duly made and published his last will and testament in the words following, to wit: “In the name of God, amen ; I Marshall Keith, of the county of Columbia and State of Georgia, do make this my last will and testament in the words following; that is to say, in the first place, I give and bequeath unto Joseph Jones, alias Keith, one negro girl now in Alabama, named Jane, together with her increase, to him and his heirs forever. Then I give and bequeath unto said Joseph and John Jones, alias Keith, all my property in Alabama, both real and personal; also, the crop or crops on hand at my death. I also give to the said Joseph and John, the following ne-groes now in Georgia; viz : Zach, and his sister Martha; Jack, and his wife Aggey, together with all Aggey’s children ; Deiley and her children, and Jim, together with the increase of the females, to them and their heirs forever. Item — I give and bequeath to Mary Jones, wife ofWm. Jones of Augusta, (Gin maker,) the land I purchased of John Wood; also the land I purchased of Shackelford and McNair ; also eighty acres ofland, beginning at a planted rock, near a red oak stump, it being one of McNair’s corners, running a northerly course with McKinney’s line, a sufficient distance on said line, thence westwardly to Foster’s old fields, to make the eighty acres; it being part of the land purchased of McKinney and adjoining McNair, which said land, I give to her and her heirs forever. Item — In addition to what I have given said Mary Jones, I give and bequeath the fol
Item — It is my desire, that my servant Ishmael should be freed; but if that cannot bo accomplished, I give him to my Executors hereinafter named, in trust, for his own use, to go wherever he may please, and if it subs him to take with him, sell or dispose of, the property hereinafter devised to my Executors, in trust for said Ishmael; he making in writing, application for that purpose, to my said Executors ; in which case, I do authorize my said Executors to sell all or any part thereof, the proceeds to be paid to him, the said Ishmael. Item — I give to my Executors in trust, for the use of said Ishmael, one hundred and fifty shares of the Mechanics’ Bank of Augusta. I also give to my said Executors, in trust, as a home for the said Ishmael, and his sisters Minny and Elizabeth hereinafter named, all my land on the east side of Fury’s ■ Ferry road, to be under the sole direction and control of the said Ishmael; but should the said land be sold as above, it is my will and desire that Minny should receive one third of the amount of the sale. I also give to my Executors in trust, aforesaid, for the use of Ishmael, the following, viz : Hannibal, Delila and her two children Ned and George, also, the blacksmith’s tools; choice of one cart and oxen; choice of my horses, and choice of three mules; also, corn, fodder and pork for one year; also stock of cattle, sheep and hogs, as many as my Executors may deem necessary; also, one bed and furniture; all of the above property I give to my Executors, in trust, for the said Ishmael and his heirs, forever, with power to will the same. I also give in like manner, to my Executors in trust for Ishmael, the following negroes : Boling, Robert and Green, children of yellow Agg, in like manne \
Item. — I give my servant Nancy in trust to my Executors for
In testimony whereof, I have hereunto set my hand at my page, and' affixed my seal, this Eighteenth day of May, in the year of our Lord, 1839. Marshall Keith, [l. s.]
In the presence of
Jas. G-. Stallings,
Isaac Bryan,
W. C. Berryhill.
Georgia, Columbia County :
In the Court of Ordinary, James G. Stallings, Isaac Bryan and Wm. C. Berryhill, the three subscribing witnesses to the within and foregoing instrument, after being duly sworn, upon the Holy Evangelist, depose and say that they were personally present, and saw the testator, Marshall Keith, in life, sign, seal, pronounce and declare the same to be his last will and testament; that the testator was of sound and disposing mind and memory, at the doing thereof, and that they subscribed the same as witnesses thereto — all done at the request and in the presence of the testator, and in the presence of each other.
Jas. G. Stallings,
Isaac Bryan,
W. C. Berryhill.
Sworn to in open Court, this 3d day of January, 1842.
G. Jones, Clerk.
It will be perceived that the testator departed this life, without revoking, or in any manner altering said instrument, and that the same was duly proven by all three of the subscribing witnesses, and admitted to record by the proper Court, on the 3d day of January, 1842. Three of the four Georgia Executors qualified, namely, George W. Crawford, William Jones, and Turner Clanton, and proceeded immediately to execute the will. On the 28th of January, 1847, something upwards of five years after the probate of the will, Hibler and wife, Vance and wife, and Tarlton F. Keith, next of kin of the testator, called upon the Executors to produce the will of the deceased, and prove the same in solemn form, on the first Monday in March thereaf
The pro-movants, on the contrary, contended that this paper, purporting to be the last will and testament of Marshall Keith, deceased, was utterly null and void by the laws of the land, and in violation of the public policy of the State, the testator having attempted therein to manumit his slaves, which is expressly inhibited by the Statute's of Georgia.
The case being appealed by consent, to the Superior Court, was finally tried at the March term, 1848 — His Honor, Judge Holt presiding — Tarlton F. Keith, one of the caveators, withdrew from the litigation. The Special Jury found a verdict for the Executors.
Various errors are alleged to have been committed during the progress of the trial, which it becomes our duty to consider.
2d. The caveators applied to have the second ground of de-
[3.] And the time within which this may be done, is not, and from the nature of the case, cannot be very accurately designated, In England, it has been held that a will may be called in, and the probate contested, after a lapse of twenty years from the probate in ’common form. Sattewhite vs. Sattewhite, 1 Eng. Eccl. Rep. 151. ’ Timucan vs. Gayfer, lb. 425. And Bacon mentions a case, when, after the lapse of forty years, the heirs of the deceased were permitted to contest the will. The Legislature of Georgia in 1845, passed a Statute of Limitations upon this subject, and fixed upon seven years as the period after which this shall not be done, except in case of infancy. Pamphlet L. 1845, p, 39. But this proceeding must be determined by the law as it stood before that time. And we would not be understood as expressing any opinion as to whether a party might not, even under the Statute, lose the right, under the peculiar circumstances of the case, before the seven years had expired.
And having come to this conclusion, it saves us the necessity of deciding the other grounds, taken in the Bill of Exceptions, and pressed with most commendable zeal and ability by the counsel for the plaintiffs in error. And we are glad to be thus relieved, for the remaining questions involve matters of the greatestimport.
It may not be unworthy of notice that we have a direct legislative expression of opinion, in support of both of the positions here assumed, viz : the impropriety of tolerating domestic manumission, which cannot fail greatly to corrupt the other slaves of the country, and to render them dissatisfied with their condition of servitude — leading in the end to insubordination and insurrection ; and on the other hand, that foreign colonization has in it nothing hostile to the peace and policy of the slave-holding States. The Act of the General Assembly of Georgia, passed in 1817, empowers the Governor to cause to be sold all negroes, mulat
It will be perceived that the Representatives of the people, instead of condemning and repudiating foreign emancipation, as pregnant with mischief, more than thirty years ago affixed to this enterprise the public seal of commendation and encouragement. And this act of their Agents remains on the Statute Book, unre-pealed by their constituents.
In conclusion I would remark, that great indulgence is extended to the declared wishes of testators, touching what they would have done with their property after their death. If it be true, however, that families are the original of all societies, and contain the foundation and primitive elements of all other social institutions, and as such deservedly claim the front rank in the protection of Courts, Wills, which are calculated practically, to disregard and set at nought this divine ordinance, worth more than all that man in his wisdom has ever devised, cannot claim to be regarded with peculiar tenderness and favoritism by Courts of Justice.
Let the Judgment of the Court below be affirmed.