Anderson v. Pgreen

• Citation: 46 Ga. 361
• Parties: JOHN ANDERSON, plaintiff in error. v. MOSES P.GREEN, executor, defendant in error.
• Decision Date: 31 July 1872
• Court: Supreme Court of Georgia

46 Ga. 361

JOHN ANDERSON, plaintiff in error. v. MOSES P.GREEN, executor, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1872.)

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Verdict. Practice. Decree. Plene administravit præter. Juror. Probate. Statute of limitations. Estoppel. Immaterial error. Manumission. Presumption. Purchase by executor. Relief law. Before Judge Gibson. Burke Superior Court. May Term, 1871.

John Anderson filed his bill against Moses P. Green, as executor of Augustus H. Anderson, deceased, making the following case: Augustus H. Anderson died in the year 1853 testate, leaving a large estate of realty and personalty. The sixth and seventh items of his will were as follows, to-wit:

"Item 6th. I desire and direct that my executors cause to be removed to a free State and there emancipated, John, son of my negro woman slave, Louisa; that they pay the expenses of such removal, and for the reasonable support and schooling of said John until he is put to a trade, and that when, if he do reach the age of twenty-one years, they invest and secure for his benefit, as they may deem best, the sum of $3,000, to be raised out of my estate."

"Item 7th. I desire and direct that my negro slave Louisa, mother of said John, shall be kept at my Burke plantation until January 1st, 1875, that she be kindly treated and provided for; that she be employed as a seamstress as heretofore, and that she be paid by my executors, annually, until that time, the sum of $50. If she choose then, in 1875, to go to a free State and be emancipated, my executors are directed to carry out her determination, and to invest and secure for her use as they may think best, the sum of $2,000, to be raised out of my estate, the interest of which she is to receive during life, and then her son John, if in life, is to have the benefit of said investment absolutely. If said slave Louisa shall determine not to go to a free State then I give her to my son-in-law, Moses P. Green, if in life, or if not, to any *one of the children or descendants of my daughter Martha that said slave may select as her owner."

The will was admitted to probate on May 7th, 1853, and Moses P. Green qualified as executor. At November Term 1855 of Burke Superior Court, a decree was rendered upon said will, at the instance of the legatees, containing the following provisions, to wit:

"That said defendant, under the direction of Thomas M. Berrienand Andrew J. Miller, solicitors in this case, make such provision and investment for the slaves John, Adam, Mariah and Louisa, and such disposition of any of them as will substantially carry out the provisions of of said will in relation to them."

"That said defendant proceed to sell all the lands of said deceased in the county of Burke, and all the negro slaves thereon, Adam, Mariah, John and Louisa excepted, at such time or times, place or places, upon such public notice and upon such terms as he may agree on with said solicitors, and that after paying all debts, legacies, the solicitors' fees and Court costs in the suit, and making the investments provided in this decree, the residue of the proceeds of such sale shall be invested by the defendant under the direction of said solicitors in State stocks, or other stocks or securities, for the uses and purposes specified in the will of said deceased. That said defendant report annually to this Court his action under this decree, and that the further aid and direction of the Court be given if necessary from any cause or difficulty in carrying out the same."

The complainant, who was the slave referred to as John in said will and decree, became twenty-one years of age on the—day of February, 1862, and his mother Louisa died in 1858 or 1859. The defendant made sales of the property of the estate to the amount of $109,000, made no investment of the funds as required by the decree, and has made no returns to the Court. The defendant bought in most if not all of the real estate and now holds the same, to wit: the "House tract" containing three thousand six hundred *and eighty-seven acres, the "Eighty-three Station tract" containing one thousand five hundred and one acres, and the "Nesbit tract" containing--acres.

The defendant had failed to pay the legacies to complainant or to his mother, and had failed to make any provision for the execution of the bequest in the bill as to them. He had also failed to carry out the provisions of the decree of 1855 as to them. The bill prayed that the defendant be required to pay to complainant the legacies to him and to his mother, with the accumulated interest thereon, and also for discovery.

The answer denied that it was the intention of the testator that the bequest in favor of complainant should be carried out literally, as expressed in said will; that defendant had always claimed complainant as his slave until he was emancipated at the close of the late war; that testator intended that complainant, who was then of tender years, should remain with his mother until the time when, by the terms of said will, she was permitted to exercise her choice whether she would go to a free State herself, or remain, he believing, from her expressed opposition, she would never consent to go; that then, if said Louisa decided not to go to such free State, the complainant and his said mother were to remain in this State, under the protection of defendant, be free and enjoy the bequests, so far as it was possible for them to do; that, in the meantime, testator desired that compainant and his mother should be as free as defendant could make them, without endangering their safety, under the laws then of force; that testator expressed his secret wishes and in-structions respecting complainant and his mother repeatedly, both before and after the execution of the will, and earnestly and solemnly enjoined upon this defendant the special trust and confidence that he would execute the same, so far as they were concerned, not as therein directed, but according to his wishes and intentions so expressed to this defendant; that defendant paid to Louisa, annually, the sum directed by said will; that the 6th and 7th items of said will werevoid, as contrary to the public policy of the State; that, inasmuch as Louisa died *at the time set forth in the bill, the contingency upon which she was to have and receive the legacy of $2,000 never happened, and therefore complainant acquired no interest in the same; that the sale under said decree was made, as charged, for the sum mentioned, but only a portion of said sate was for cash, and the remainder on a credit of one and two years, and that all the funds collected were expended in the payment of the debts of the deceased, except a part of the credit proceeds, which was invested by him in notes, mortgages and judgments, for the benefit of the estate, and a part of which is now in his hands, in shape of Confederate bonds; that defendant did purchase some of the property sold, through another, and is now in possession of the same, but that the full market value was paid for all property thus bought by him; that defendant made his annual returns to the Court of Ordinary of Burke county regularly until the year 1859, after which time, receiving nothing on account of said estate, the returns were discontinued; that, as executor of deceased, he has fully administered all and singular the goods and chattels, rights, credits and effects which were of the estate of the said Augustus H. Anderson, deceased, at the time of his death, and which came to the hands of defendant to be administered. That there is now due by said estate a trust debt in favor of Augustus H. Anderson, in right of his wife, Susan J. Anderson, amounting, originally, to $--, which has been reduced, by payments, to $--; that, by the 8th item of said will, testator bequeathed to defendant the privilege of using free from charge, all the lands loaned to him by testator in his lifetime, until January 1st, 1875, and that, by the decree of 1855, defendant was allowed to retain, for his own use, such sum as should, in the opinion of the solicitors named, be a sufficient consideration for the release of the privilege bequeathed to him; that defendant made such release, but said solicitors failed to make the aforesaid estimate; that said lands were of the value of $20,000 at the date of saiddecree, and of the yearly value of $2,000 making, for the twenty years intervening between the date of *said decree and the year 1875, the sum of $40,000, besides interest due to this defendant for the release aforesaid.

That defendant denies that he owns the "Nesbit tract" of land as charged.

That if complainant be entitled to a decree for any amount defendant prays that it may be taken against the assets of the estate remaining in his hands as executor; that said decree may be taken subject to the aforesaid trust debt of Augustus H. Anderson, in right of his wife, Susan J. Anderson; that if the aforesaid assetsmay prove insufficient, that the legacy in favor of the complainant may abate pro rata with that of this defendant.

The evidence is unnecessary to an understanding of the questions of law passed upon by the Court, as the facts of the case are fully reported in the bill, answer and motion for a new trial.

The jury returned the following verdict: "We, the jury, find the sum of $5,000 with legal interest thereon from the 24th day of November, 1855, for the complainant, John Anderson, to be raised out of the estate of A. H. Anderson, deceased, in the hands of M. P. Green, executor."

Upon this verdict the Court entered the following decree:

'Whereupon it is considered, adjudged and decreed that the complainant, John Anderson, do recover from the assets of the estate of A. H. Anderson, as shown to be in the hands or control of Moses P. Green, the executor, by his plea and answer filed in the above cause, unadministered, the sum of $5,000 with...