Mullery v. Hamilton

• Decision Date: 02 February 1884
• Citation: 71 Ga. 720
• Parties: MULLERY et al. v. HAMILTON et al.
• Court: Georgia Supreme Court

71 Ga. 720

MULLERY et al. v. HAMILTON et al.

Supreme Court of Georgia.

February 2, 1884

September Term, 1883.

1. Where a legacy had been left to a certain child, and the question was whether he survived the testatrix, and whether a certain person who did survive her, and who was claimed to be the legatee, was in fact so, on the question of identity, it was admissible to show the name such person bore, his personal appearance and conversations, and the account he gave of himself, his family connections and associations.

( a. ) Identity of person may be proved by the concurrence of several characteristics. The tendency of the courts is to relieve parties from the onus of proving identity, it being, in general, more easily disproved than established.

2. There was sufficient evidence of the identity of the person claimed to be the legatee and the actual legatee to uphold the finding in this case.

Legacies. Evidence. Identity. Before Judge HAMMOND. Fulton Superior Court. April Term, 1884.

Reported in the decision.

W. L CALHOUN, for plaintiffs in error.

COLLIER & COLLIER, for defendants.

HALL Justice.

Bridget Doyle, who died in December, 1878, left a will, which was duly admitted to probate and record by the court of ordinary of Fulton county, which, among others, contained this item:

" I give, etc., to my daughter, Agnes Mary Carroll, for and during her natural life, all of my real estate in the city of Atlanta and elsewhere, of every description; and at her death, the said real estate to go to her child or children, if any she has, in fee simple; and if she die without child or children, then I desire and direct that my said real estate shall pass to and become the property in fee simple of the children, if any, of my brother John J Hamilton and my sisters Mary O'Sullivan, Catharine Bland Lucy Mahoney and Dora Harrington, share and share alike, except that I direct that John Golvin, the son of my said sister Dora, shall not have any part or share of my estate whatever."

The life tenant, Agnes Mary Carroll, having died, leaving no child or children, the lands devised by this item of the will were sold, and the proceeds of the sale distributed among all the devisees named therein, by order and judgment of the superior court of Fulton county, except the portion going to the child or children of John J. Hamilton, which by said judgment was directed to be retained until the further order of the court, in the matter of the claim of John J. Hamilton, in his own right and as guardian of his minor son Thomas Carroll Hamilton, who, he alleged, were the heirs at law of his son John J. Hamilton, Jr., who survived said testatrix and thereafter died, leaving no descendants and no other heirs than his father, John J. Hamilton, and his brother, Thomas Carroll Hamilton. The question reserved for determination by this order was whether John J. Hamilton, Jr., was in life when Bridget Doyle died, and whether he had subsequently died without descendants; if so, then the property bequeathed was found to belong to his father and minor brother.

This issue coming on for a hearing, was, by consent of counsel, submitted to the presiding judge's decision, both as to the facts and law involved. After hearing the evidence, the issue was determined in favor of the Hamiltons, and the opposite parties having moved for a new trial upon various grounds, and the motion therefor having been overruled and denied, they prosecute this writ of error to reverse that judgment.

John J Hamilton had a son bearing his name, of whom he had lost sight for a number of years prior to the death of Bridget Doyle; in fact, John J. Hamilton, the elder, was himself thought to be dead, and his wife had married another man. He returned to his former place of abode, when his wife and her new husband fled, carrying with them his son John J. Hamilton, Jr.; where they went he never knew, nor did he ever see his son again. After the death of Bridget Doyle, he advertised in the " Irish World," a paper published in New York city, and also in a Chattanooga newspaper, for information concerning his lost son. In the early part of the year 1878, a youth about 18 or 19 years of age, calling himself John J. Hamilton, was seen in Nashville; the witness who saw him there described his personal appearance, the color of his hair and eyes, and learned from him his birth-place and the names of several of his relatives; he thought that he was of Irish extraction, and it is certain that John J. Hamilton, the party taking under the will of Bridget Doyle, was the child of Irish parents. Nothing more was heard of him until March, 1880, when a person calling himself John J. Hamilton appeared at the camp of hands working on the Cincinnati Southern Railroad, between Rockwood and Keegan's Tunnel, in the state of Tennessee. This person calling himself John J. Hamilton, shortly after arriving at that camp, died and was buried there; the witnesses who saw him describe his appearance pretty much as the person of that name seen in Nashville was describe by the witness who saw him two years before; the...