71 Ga. 720 (Ga. 1884), Mullery v. Hamilton

Citation:71 Ga. 720
Opinion Judge:HALL, Justice.
Party Name:MULLERY et al. v. HAMILTON et al.
Attorney:W. L. CALHOUN, for plaintiffs in error. COLLIER & COLLIER, for defendants.
Case Date:February 02, 1884
Court:Supreme Court of Georgia
 
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Page 720

71 Ga. 720 (Ga. 1884)

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...

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