24 Ga. 558 | Ga. | 1858
By the Court. delivering the opinion.
This case comes up on errors assigned upon the rejection by the Court of Charles G. Gartrell’s depositions offered by the defendant, and on the charge of the Court as given, and ©n the Court’s refusal to charge as requested. The bill was filed originally against Carlton Wellborn as executor, in right of his wife, Rebecca Gartrell, of the last will and testament of Joseph Gartrell deceased. Charles Gartrell was made a party defendant by amendment of the bill. The testator appointed Abraham Simons his executor and his wife his executrix. Simons did not qualify. The wife qualified and Well-born intermarried with the executrix, and in this manner became executor in right of his wife.
The witness having answered, and his sworn answer haring been read to the jury in the hearing of the Court, the presiding Judge was thereby informed of the nature of the proof proposed to be made by him.
The error assigned on the charge of the Court in regard ts the mode of calculating interests chargeable against executors is in accordance with the repeated decisions of this Court and must be sustained.
The alleged ^error of the Court in the following assignments on the charge is abandoned.
1st. That it was Wellborn’s duty to make returns, and til? he can derive no benefit from failing to do so, and responding generally that, he can’t toll.
2d, That it is the duty of guardians and executors to keep and render annual returns.
3d. That it is the duty of a guardian or executor to manage tlie property of their cestui que trusts solely for their
4th. That the will of Joseph Gartrell appointed Rebecca his wife, his executrix and the guardian of his children, and created an express trust of them and their property, and if Welborn on his marriage with the widow took upon himself the trust, he was bound to account as executor and guardian.,
5th. That it was the duty of Wellborn to have made annual returns as guardian and executor to the Court of Ordinary, and the law admits of no excuse and the expense is no excuse.
6th. That the returns of the Ordinary are evidence for th® defendant, hut when, in* his answer, he sets up payment# and expenses, not in his returns, he must prove them ; his answer is not proof without evidence in support.
7th. That what is responsive to the hill is evidence for him, until overcome with evidence equivalent to two witnesses; hut when he sets up, in avoidance, any defence, as that he has received money or property, but has.paid it away: this is not evidence for him; he must prove it.
8th. That when Mr. Wellborn answers, that he has paid away money or property of his ward for debts and in their education, but has kept no accounts, and has forgotten; this is no excuse, he was bound to keep accounts.
9th. That it was the duty of Mr. Wellborn so to employ the property of his wards as would be most profitable and beneficial to them, and that he is liable for the hire of their negroes and the rent of their land, when the lands were not cultivated by their slaves, and it is no excuse that as he has kept no accounts, he has forgotten.
10th. That if the jury believe there was fraud in procuring the deed from his wards for the Wilkes lands to himself, it is void, and as he admits, Mrs. Rogers was under age, it was voidable as to her.
11th. That when Mr. Wellborn undertook to have a setilement and division wi.h his wards, touching their property
As the above assignments of error are not insisted on in this Court, we will proceed to the consideration of those that are.
The defendant is bound to account for the price of Stephen,, and of Hetty and her children, and of the land, and if he does not adduce evidence satisfactory to the jury that he applied the proceeds of the sales ro the payment of the debts, and liabilities of testator’s estate, he must account in the manner hereinbefore stated, and according to the charge of the; Court.
What we have already said in reference to the matter of the second request made of the Court, to charge the jury by defendant’s counsel, is perhaps sufficient. If the influence acquired by Wellborn over Mis. Rogers in, bis character of guardian continued down to the period of her marriage, so as to repress all apprehension, oir her part, of fraud in the settlement, the saving in the statute did not begin to run, and after marriage the statute protected her from its operation.
The third request o'f the defendant’s counsel made of the Court to charge as to the effect of his answer as evidence in the particulars specified was a legal request, and it ought to have been given as asked. It would have been the duty of the jury, after giving due effect to the answer, to have looked through the whole case, and to have ascertained from the evidence before them, whether it was overcome in these particulars.
We have gone through the case and considered all the errors assigned, which were insisted on in this Court and our judgment is that the judgment of the Court below must he reversed, and a new trial ordered.
Judgment reversed.