Alex'r R. Beall v. Drane

• Decision Date: 30 June 1858
• Citation: 25 Ga. 430
• Parties: Alex'r R. Beall, plaintiff in error. vs. Stephen Drane, et al., ex'ors, &c, defendants in error. Stephen Drane, et al., ex'ors, &c, plaintiffs in error. vs. Alex'r R. Beall, defendant in error.
• Court: Georgia Supreme Court

25 Ga. 430

Alex'r R. Beall, plaintiff in error. vs. Stephen Drane, et al., ex'ors, &c, defendants in error. Stephen Drane, et al., ex'ors, &c, plaintiffs in error. vs. Alex'r R. Beall, defendant in error.

Supreme Court of the State of Georgia

JUNE TERM, 1858.

Demurrer from Columbia county. Decided by Judge Holt, March Term, 1857.

Ordered, by consent of counsel, that the above cases be consolidated and argued together.

This case came up before the Court at the January Term, 1857. the proceedings on which argument, the facts of the case, and the will of the testator, will be found fully reported in 21 Georgia Reports, 21.

The case came up under the following circumstances:

Alexander R. Beall, as next of kin to Thomas E. Beall, having obtained letters of administration upon the estate of the said Thomas E. Beall, filed his bill, and after stating the proceedings before referred to, as reported in 21 Georgia Rep. 21, set forth the following allegations and statements:

That the ninth clause of said will is illegal and void, and can not be carried into effect, because it conveys a tract of land to a free person of color, who has not capacity to take and hold lands in our State, and because of uncertainty in the terms of said clause; that the tenth clause is void because of such uncertainty in its terms, and that the twenty-fifth clause is void, because of uncertainty as to the subject of the bequest; and after probate is refused to the clauses of the will which have been declared void, the impossibility ofarriving at or ascertaining the amount conveyed by said clause; a portion of the fund constituted by the sale of testator\'s property as directed by the will, out of which certain payments were directed to be made by the clauses which have been declared invalid, and out of which fund the residuary bequest in the said twenty-fifth clause contained, is directed to be taken, now resulting to your orator by reason of the invalidity of said clauses; and that portion being unascertained and unascertainable: and also, because of uncertainty as to the objects of the bequest; the same being to "poor orphans, citizens of Columbia county, " and to "poor children of Columbia county" can not be carried into effect as a portion of the last will and testament of Thomas E. Beall. And the twenty-sixth clause of said will is void because dependent upon the said twenty-fifth clause, and because of indefiniteness and obscurity in the directions given by said testator as to the method in which his intention in this connection was to be or could be carried into effect.

That as next of kin, he has obtained letters of administration upon the estate of the said Thomas E., not disposed of by last will and testament, a copy of which said letters are hereto annexed, and marked Exhibit E; and that as such administrator de bonis non, he is entitled to all of the estate of the said Thomas E., which he sought to convey by the clauses of said will that have been declared void, and to which probate has been refused, as well as to the property sought to be conveyed by the said ninth, tenth, twenty-fifth and twenty-sixth clauses of said will, as the same can not be carried into effect, a part of which property only has been given up by said executors to your orator, to wit: that disposed of by the twelfth, thirteenth and fifteenth clauses of said will; that as such administrator de bonis non, he is entitled to be paid a reasonable hire by said executors for the work and labor of said slaves from the death of the testator to the period when the same were by said executors given up to your orator, to wit: on the day of in theyear of our Lord eighteen hundred and fifty-seven, which said hire amounts to the sum of five thousand dollars, or other large sum; that as such administrator he is also entitled to the stock, farming utensils and other articles, together with the crop of every description, which was on hand at the testator\'s death, and reserved for the purpose of "stocking" the plantation for the slaves, amounting in value to the sum of two thousand dollars, or other large sum, (the same being disposed of by one of the clauses of said will which has been declared void as aforesaid,) that he is entitled to have and receive from the executors the crop made on the plantation of the testator during the past summer and fall, to wit: the summer and fall of the year eighteen hundred and fifty-six, the same amounting to the sum of five thousand dollars, or other large sum; that he is also entitled to have and receive from said executors that which would be equivalent to the use, enjoyment and cultivation of said plantation, or the actual cultivation thereof by said slaves, for four years, the said use and cultivation of the same for the period aforesaid, having been, by one of the clauses which has been declared void as aforesaid, given to the said slaves, in all amounting to the other and further sum of five thousand dollars; that he is entitled to have and receive from the said executors the sum or sums of money which would have been necessary to remove and used as expenses in removing the said slaves to Liberia, or some free State or Territory, and which were directed to be taken out of his estate and used for this purpose by the testator in certain clauses of his will, which have been declared to be void, as aforesaid, the same amounting in all to the sum of three thousand dollars, or other large sum.

That by the said tenth clause of the said will, a reservation of a tract of land for the use of one James A. Watson for life, was sought to be made by the same testator, that the said James A. is interested, therefore, in the decree which may be made by this honorable Court in deciding upon the valid-ity of said clause, wherefore your orator prays, that he may be made a party defendant to this his bill of complaint, if it be deemed necessary. Your orator also showeth, that by the twenty-sixth clause of said will the testator directs that the Justices of the Inferior Court of said county of Columbia, shall select some person under certain conditions therein specified, to disburse the fund therein directed to be applied to the purposes specified, or that the said Justices, if they can find no one to take charge of the disbursement of the same under the conditions prescribed, shall themselves take charge of the said fund; and if by virtue of said provision the said Justices are interested in the decree which is by this his bill of complaint invoked by your orator, he prays that the said Justices may be made parties defendant to this his bill of complaint.

To this bill the defendants by their solicitor, Charles J. Jenkins, demurred on the grounds:

1st. That there is no equity in said bill, for that the clauses in the last will and testament of Thomas E. Beall sought to be invalidated, are legal, and sufficiently distinct and certain, as well in reference to the subjects as the objects of testamentary disposition, to admit of execution.

2d. That there is no equity in so much and such part of said bill as seeks to invalidate and set aside the 9th clause of said will, making provision for Nancy Goings, a free person of color; for that said clause is legal, valid and capable of execution.

3d. That there is no equity in so much and such part of said bill as seeks to invalidate and set aside the 10th clause of said will, making provision for James A. Watson; for that said 10th clause is legal, valid and capable of execution.

4th. That there is no equity in so much and such parts of said bill as seek to invalidate the 25th and 26th clauses of said last will and testament; for that both the subject matterof the devise and the objects of testator\'s bounty contemplated in said clauses, are clearly ascertainable, and the entire charity legal, wise and beneficent.

5th. That there is no equity in so much or such part of said bill wherein is sought a recovery of hire for the slaves belonging to the estate of the said Thomas E. Beall, during the year 1856, or of the actual proceeds of their labor during that year; for that said proceeds fall into and constitute part of the residuum, and pass under the said 25th and 26th clauses of said will.

6th. That for the same, as well as for other good and sufficient reasons, there is no equity in so much or such parts of said bill wherein is sought a recovery of rent for the plantation whereon said Thomas E. resided, or an equivalent for the use, enjoyment and cultivation thereof since testator's death.

7th. That there is no equity in so much and such part of said bill wherein is sought a recovery of the stock, farming utensils, and other articles on said plantation, being at testator's death, and of the crops thereon had; for that said personalty, by the 23d and 24th clauses of said will is directed to be sold, and the proceeds of the sale thereof is disposed of by the 25th and 26th clauses thereof.

8th. That there is no equity in so much and such part of said bill wherein is sought a recovery of the sum or sums of money which would have been necessary to remove, or used as expenses in removing said slaves from the State of Georgia; for that said expenses are directed to be taken out of a fund, (no sum being designated,) the balance of which sum is disposed of by the 25th and 26th clauses of said will.

9th. That the guardian of Nancy Goings and James A. Watson, and the Justices of the Inferior Court of Columbia county, none of whom have been served, and one of whom has not been named in said bill, are necessary parties, without whom said cause can not proceed.

The said demurrer came on to be heard before his Honorthe said Judge, at chambers, when the. counsel for the complainant requested the decision of the Court upon the points, and to the effect following, that is to say:

1st. That Nancy Goings, being a free person of color, is incapable of taking the devise conveyed for her benefit in the 9th clause of Thomas E. Beall...