Eubanks v. Banks

• Decision Date: 30 June 1866
• Citation: 34 Ga. 407
• Parties: George Eubanks, and others, plaintiffs in error. vs. Francis A. Banks, Administrator of Alfred Eubanks, deceased, Ambrose Eubanks, and others, defendants in error.
• Court: Georgia Supreme Court

34 Ga. 407

George Eubanks, and others, plaintiffs in error. vs. Francis A. Banks, Administrator of Alfred Eubanks, deceased, Ambrose Eubanks, and others, defendants in error.

Supreme Court of the State of Georgia

JUNE TERM, 1866.

In Equity. In Morgan Superior Court. Tried before Judge Wm. M. Reese. May, 1866.

Alfred Eubanks, a citizen of Georgia, and resident of the county of Morgan, in said State, having departed this life in the year 185—, intestate, without wife or child, or any lineal descendant, his lawful administrator, Francis A. Banks, having settled up his debts, was about to proceed with the distribution of his estate, consisting of real and personal property, when a dispute arose amongst the persons claiming to be brothers and sisters and half brothers and sisters of said Alfred. Not being able to settle this controversy, George Eubanks, David Eubanks, and James M. Hatch and his wife Sarah, filed their bill of complaint in the Superior Court of Morgan county against said Banks, the administrator of Alfred Eubanks, Ambrose Eubanks, Asa Eubanks, and others, the children of one Thomas Eubanks. In this bill, while fully and distinctly admitting the children, and their representatives, of Thomas Eubanks, named as defendants, to be entitled to inherit the estate of Alfred Eubanks, on account of being his full and lawful brothers and sisters by a father and mother, dead many years before the death of Alfred Eubanks, these complainants claimed also the right to inherit with the defendants, on the ground that they were the legitimate children of Thomas Eubanks, father of said Alfred, by a second wife, one Betsey Eubanks, formerly Betsey Wilson or Yarbrough. This claim was resisted by defendants, on the ground that the complainants were not legitimate children of Thomas Eubanks, but illegitimate children, because said Thomas and the mother of complainants werenever lawfully married, and could not be so lawfully married or have lawful issue. To sustain the claim of complainants, they submitted the following testimony:

1. The interrogatories of William Wilson, who testified as follows: That he is a resident of Fayetteville, Cumberland county, North Carolina; was married to Betsey Yarborough, a daughter of Joseph Yarborough, in said county and State, in the year 1818; lived with said Betsey something more than one year; left her, about the year 1819, in said county, and went to Tennessee; remained there nineteen years and six months, during which time he did not write to or have any communication with his wife, said Betsey. After an absence of eight years, he had reason to believe that said Betsey intermarried with one Thomas Eubanks; that he left North Carolina immediately upon his separation, not remaining there, in Cumberland, one day; that he never lived in the same county or neighborhood with said Betsey since she married Thomas Eubanks; that he has never seen her since he left her in 1819, and has had no communication whatever with her; that he did make an affidavit about the 9th day of October, 1857; that he can neither read nor write, and never made an affidavit, to his knowledge, that said Betsey was married in less than eight years after he left her; that if he ever made an affidavit other than this, it was incorrectly read to him, or he did not know its contents, and expressly stated to the officer taking the affidavit, that he was absent after he separated from his said wife, nineteen years and six months, and more than eight years after leaving her, heard that 6he was married; that he lived in Tennessee nineteen years and six months, immediately after his separation from said Betsey, since which time he has lived in Cumberland county, North Carolina; that he now lives fifty-five miles from said Betsey, and for nineteen years and six months lived more than eight hundred miles from her.

2. The interrogatories of Elizabeth Eubanks, who testified as follows: That the complainants are her children by Thomas Eubanks, to whom she was married in 1828; that Thomas Eubanks is their father, and that they were begotten and born in lawful wedlock; that they are half brother and sister of said Alfred; that she was married, in 1818, to one William Wilson, who, in about one year, left her, and went to parts unknown to her; that she heard it reported, some three or four years after his departure, he, Wilson, was dead; that she intermarried with Thomas Eubanks in about nine years after Wilson\'s departure; that her maiden name was Yarborough; that she married Wilson in 1818, and Eubanks in 1828 at the house of Thomas Lasseter, a justice of the peace; that she is about 59 years of age.

3. The interrogatories of Joseph Yarborough, who tesfied that he knew the father and mother of complainants; was present at their marriage, about 1828; that he knew William Wilson, but did not know where he was when Thomas Eubanks married the mother of complainants; heard it reported at that time he, Wilson, was dead, having left the country many years before; that ho is the uncle of complainants.

4. The interrogatories of Frederick Yarborough, who testified that he was present when William Wilson and his sister, Betsey, were married; that it was in 1818, at his father's house; that they lived together, between two or three years, when Wilson quit his wife, went to the Western country, of whom he saw nothing until about two years since, when ho met him with a woman and five children, which he claimed to be his wife and children; that he is the brother of complainants' mother, and is nearly sixty-nine years of age.

5. The interrogatories of Matthew Yarborough, who testified that he was present at the marriage of Elizabeth Yarborough, his sister, with William Wilson, which occurred in 1818, at her father's house, in the county of Cumberland; thinks that Wilson left his wife in two or three years after his marriage aforesaid; would not be positive; that Wilson left that section of the country when he left his wife; thathe has never since seen him, and knows not when he returned, or that he ever returned.

6. The interrogatories of Daniel Ansley, who testified that he had known Elizabeth Eubanks, widow of thes. Eubanks, thirty-five years; that he was present at her marriage with Thomas Eubanks, in 1828, in his house, in Chatham county, North Carolina; that Thomas Lassetee, a justice of the peace, performed the marriage ceremony; that said, Eubanks and Elizabeth lived together as man and wife, from their marriago to the death of Thomas Eubanks; that complainants were the children of said marriage; that Thomas Eubanks was sixty years of age at the time of said marriage; that said Elizabeth was known at the time of marriage as Elizabeth Wilson; that he never knew of William Wilson being in the county of Chatham until after the death of Thomas Eubanks; that he came to said county in 1852 or 1853, where he remained only a short time.

7. The interrogatories of Robert Fawett, who testified that he has resided in Haywood, Chatham county, North Carolina; has had a large acquaintance with the people of said county, since 1830; that said Wilson married and settled in Haywood in the fall of 1849, which was the first time he ever heard of him.

8. The interrogatories of Elias Bryan, who testified that he was a resident of Haywood, Chatham county, N. C.; knew the citizens thereof for the last twenty years, and never knew William Wilson in said county previously to 1848 or 1849.

Defendants submitted the following testimony, to show that the complainants were not lawful heirs of Alfred Eubanks:

1. The interrogatories of Harriet Eubanks, who testified that she had known the mother of the complainants for more than thirty-two years; when she first knew her, she was known as Betsey Wilson, and was said to be the wife of William Wilson, and living separately from him; that she docs not know when she married with Wilson, nor when sheseparated from him, and never saw Wilson; that she knew Thomas Eubanks, the father of complainants, and knows that he " took up " with said Betsey early in the fall of 1828; that when 6he first knew Betsey Wilson, she had a little " girl daughter " named Isabella Wilson, aged about four years, which child was only about five or six years of age when Betsey Wilson took up with Thomas Eubanks; that she has heard Thomas Eubanks say he had married Wilson\'s wife and knew she was Wilson\'s wife; that she is forty-eight years of age, and married the brother of Ambrose Eubanks, and has lived in Chatham county, North Carolina, since 1820.

2. The interrogatories of Willis Poe, who testified that he knows the mother of complainants. When he first knew her she was a widow; that she and her husband had parted; that they lived separate in his neighborhood, more than four or five years; that Wilson was living with another woman, within 2¹/₂ miles of his wife, by which woman he had two children, one of whom was large enough to visit his mill, and was seven or eight years of age; that he did not know Thomas Eubanks nor anything of his taking up with Betsey Wilson; that he knows nothing, except...