Evans v. Lipscomb

• Decision Date: 31 August 1860
• Citation: 31 Ga. 71
• Parties: EVANS et al. vs. LIPSCOMB et al.
• Court: Georgia Supreme Court

31 Ga. 71

EVANS et al. vs. LIPSCOMB et al.

Supreme Court of the State of Georgia

AUGUST TERM, 1860.

31 Ga. 71

Debt, in Troup Superior Court.Tried before Judge Bull, at the May Term, 1860.

This was an action brought against Mrs. Harriet Lipscomb and her securities, on a bond given by her, as the administratrix of the estate of Mildred Bowling, deceased, to recover the amount due Thomas J. Bowling, William D. Bowling, and Archibald W. Tyre, in right of his wife, Mary M. Tyre, formerly Mary M. Bowling, as distributees of the estate of the said Mildred Bowling, deceased.

The plaintiff alleged in his declaration the following breaches of the bond sued on, to wit:

1st.That the administratrix had not made a full inventory of the said estate and exhibited the same to the Ordinary.

2d.That she had not well and truly administered said estate, and rendered a just account of the same.

3d.That she had not paid said estate, or the proceeds thereof, to the persons entitled to the same by law.

Upon the trial of said case, the following testimony was introduced and submitted to the jury, to wit:

Evidence for the Plaintiff.

John Motley, sworn, said: He knew Mildred Bowling in her lifetime, and knew her property.She owned a plantation in Heard county, on Brushy Creek, of about 300 acres, 202¹/₂ acres worth $12.50 per acre; and¹/₂ lot, 100¹/₂acres, pine land, worth $5.00 per acre.Knew her to have her negroes on this place, and she carried on fanning business there, in 1855.

Winny, worth about $200; Aaron, about 45 years old, worth $1,200 or $1,300; Margaret, 35 years old, worth $1,000; Martha, 15 years old, worth $900; Mary, about 20 years old, worth $800 or $900; George, about 14 years old, worth $800; Greene, 15 or 16 years old, worth $1,000; Frances, 15 or 16 years old, worth $900; Harriet, 10 or 11 years old, worth $500.

Margaret had two or three children; Frances had a child; did not know them sufficiently to be satisfied with his opinion as to their value.Witness was then asked the value of some of the negroes for hire.To this defendant objected, and objection was overruled.

Aaron was worth, average, per annum, $120; Margaret and her small child, $30 or $40; Martha, $70; Mary, $70; George, $80; Greene, $80; Frances, $75.

Plaintiff then proposed to question witness as to present or increased value of the property.Defendant objected, and objection was overruled.Being questioned, he answered:

Martha, $1,000 or $1,100; George, $1,200; Greene, $1,200; Frances, $1,000; Harriet, $600; Margaret is dead; Winny, worth nothing; Aaron, $900.

The negroes were working together with Mrs. Lipscomb\'s at her death; were under Mr. Turner.Saw the hands on Mrs. Lipscomb\'s place, near Brushy Creek place.Did not see the old negroes and children; saw the hands there; Mrs. Bowling had farmed to herself, and had a separate overseer, 1854, and previously.

Re-examined.Mrs. Lipscomb's and Mrs. Bowling's negroes worked both places, in 1855, together.

Emanuel Britain sworn, said: Some time in the fall of 1854, about the time Mrs. Bowling and Mrs. Lipscomb were moving to LaGrange, witness met them in the road near Mrs. Lipscomb's place, between the river and Houston; they were in a carriage together.He had a conversation with them.Mrs. Bowling said, she and Harriet (Mrs. L.) had concluded to put their forces together and farm together; and this was in reply to an expression of solicitude on the part of witness, at having heard that they were moving to LaGrange.She said, it would be a saving, and asked witness' opinion about it.Gresham was Mrs. B.'s overseer at that time.Witness knew several of the negroes, one or two.The value placed upon them by Motley was about right and fair.They said they were to go equal shares in the farm for 1855.

Timothy L. Harris, sworn, said: Just before Mrs, Bowling and Mrs. Lipscomb moved to town, while they were all sitting at Noah Lee's table, Mrs. Lipscomb said she and her mother(Mrs. B.) would move to LaGrange; that they had agreed to farm together, and would have one overseer, which would be convenient and a great saving.This was in reply to a question from Noah Lee, if their move to town would not injure them in their business matters, and what they intended to do with their hands and farming interest.Both ladies talked about it, and said in substance what Mrs. Lipscomb said in her reply.

James Edwards, sworn, says: He was with Mr. Brittain on the occasion he testified to.It was in the latter part of 1854, or first of 1855.In that conversation, Mrs. Lipscomb said to him that they were moving to LaGrange, and put their interests together, and would farm together and divide the profits.It was their land and negroes.They had moved some of their things to LaGrange.Witness was called, with others, to estimate the crops growing on the Brushy Creek place in fall of 1855.It was in corn.Judging fromits appearance, 100 acres, make 4 bbls. to an acre, worth $250 to $1,000.(Objected to.Overruled.)

Harriet, about 12 years old, worth $600; Orlando, worth $400.

Priced the negroes about as Motley did.Knew them.Saw another child worth but little.Mrs. Bowling was about 75 years old.The negroes were on Mrs. L.'s place at Mrs. Bowling's death.Judged of crops in field; it was 1855 crop.Gresham was overseeing for Mrs. Bowling at the time of the conversation, and in 1854 for the year.Does not know that Aaron has been frequently sick.Mrs. Bowling told him a year or two before that she wanted to sell her land.Did not hear her speak of it then.Does not know that it was offered for sale after she came to LaGrange.

Sanford H. Dunson, lived near the places of Mrs. Bowling and Mrs. Lipscomb; saw the negroes in 1855.They were at Mrs. Lipscomb's place.They worked on both farms, backwards and forwards.He was with Mr. Edwards in estimating crop (objected to, and overruled), on Brushy Creek place.It was worth $1,000.The houses were good, and house-room plentiful on Mrs. Lipscomb's place.There was scarcely any houses on Mrs. Bowling's place, and they not comfortable; made calculation as Edwards.

Charles W. Hearn: Saw Mrs. L. and Mrs. B. in fall of 1854, at Mrs. Lipscomb's; had a conversation with them about moving to LaGrange.They said they were going to live together.It would be pleasant and a saving.The interrogatories, except those of Aubrey and wife, were then read.

John W. Bellah: Is overseeing for Mrs. Lipscomb, now Mrs. Standford.Knows the negroes.

John, worth $400; Harriet, worth $550; Harlan, about 4 years old, worth $350; another child of Martha, walking, about $250; another child of Frances, $200; Orlando, worth $400.They are all likely young negroes.Margaret's child diseased.He knew a gin worth $65.It was afterwards sold at administrator's sale for 25 'cents.There had been a sale of perishable stuff before.Nothing else sold that day.It was bought by Mr. Turner, the overseer at the time; Nathan Strong, the bailiff, witness, and Turner, were present.(About gin objected to; overruled.)Knows Aaron; does not know of his being diseased.

He is about town; worth $900, if not diseased.Margaret is unsound, and sick nearly all last year; not worth much.Martha and two children, since she had them for hire, worth $50 per annum; Frances about $60.Has known the negroes since 1851; has been worth the hire of Margaret to keep her and her children.Supposed the sale had been advertised, as such sales usually are.The crier cried the gin as long as he could get a bid.There were three bids.Does not know and did not hear that Turner bought the gin for any one.Margaret is dead.

Dr. N. N. Smith, sworn, said: During the last illness of Mrs. Bowling, and a short time before her death, two or three days, as witness was about to leave, Mrs. Lipscomb spoke to him about Mrs. Bowling's making a will.She said her mother(Mrs. B.) had given her money, and they had bought the place near LaGrange together; and asked witness if he thought Mrs. Bowling was in a condition to make a will; witness replied that he thought she was in a condition to make a will, but that he thought the matter could be safely deferred to another time.Mrs. Bowling died soon afterwards.Witness was her attending physician.She died 27th of February, 1855.His first visit was about the 1st of February, 1855.She did not specify other property.Mrs. Bowling was a woman of good, natural sense, though without an education.She was a woman of her own opinions, though uncultivated.

Plaintiff introduced the bonds dated June 4, 1855.

It was conceded that the time had been waived to bring up the question on its merits as to title, value, etc., as far as concerned the negroes.

It was admitted that Mildred Bowling paid tax on the property in 1854.

Plaintiff then introduced an exemplification of the actings and doings of Harriet Lipscomb, as administratrix, and the original vouchers filed by her therewith.(Objected to and overruled.)And to which reference is had.Timothy L. Harris said, Mrs. Lipscomb told him in 1854 that she had bought a carriage at Columbus, and her son, Thomas, had selected it for her.

N. M. Harris, sworn, says: Mrs. Lipscomb told him in 1854, that she had bought a carriage at Columbus, of Jaynes & Brother, for about $400.

B. C. Ferrell, sworn, says: He was present in the Court of Ordinary when the administration was granted to Mrs. Lipscomb; demand was made of Mrs. Lipscomb to make a bond sufficient to cover the negroes; she refused; but upon hearing the facts before the Ordinary, by mutual understanding and agreement between the parties, the bond was given for $12,000.The plaintiff insisted that the bond ought to be $16,000.Mrs. L.\'s counsel remarking that it was immaterial what amount the bond was for.Mrs. Lipscomb claimed the negroes.Plaintiff closed.

Defendant opened his Defence, and read Interrogatories.

Dr. C. Holt, sworn, said: He is the physician of Mrs. Lipscomb's family.Has examined Aaron; he is badly...