John C. Boyd v. Glass

• Decision Date: 30 June 1866
• Court: Georgia Supreme Court
• Parties: John C. Boyd, plaintiff in error. vs. Perihelia Glass and J. Frank Glass, defendants in error.

34 Ga. 253

John C. Boyd, plaintiff in error. vs. Perihelia Glass and J. Frank Glass, defendants in error.

Supreme Court of the State of Georgia

JUNE TERM, 1866.

Habeas Corpus. Decided by Judge Worrill. At Chambers. November 1862.

Boyd sued out this writ against Permelia Glass and J. Frank Glass, to obtain the custody of two minors, Franklin and Permelia Boyd, children of John Boyd, deceased.

At the hearing it was admitted that John Boyd, the father, of Chambers county, Alabama, married Miss Margaret Glass, of Harris county, Georgia, daughter of Permelia Glass, and took her to his home in Chambers county, Alabama. They lived agreeably together until April, 1851, when he died, having made the will hereafter mentioned, and having by his last wife two children, the minors now in controversy, aged, one about four, and the other about six years. Thatafter his death his widow remained at his residence in Chambers county, Alabama, until December, 1861, when, on account of some disagreement between her and the family, she took three negroes, some other property, and all her furniture, and came to her mother\'s house, in Harris county, Georgia, where she permanently resided until she died, about two months ago;—the children being with her all the time from the death of her husband to the time of her own death. The children being then at the house of their grand-mother, Permelia Glass, have remained there, and are now in the custody of her and the other defendant in this case. That Permelia Glass is now about sixty-four years of age, a woman of good sense, a respectable lady, and would be likely to be kind to the children; that she was in possession of enough property to live comfortably, but had but little property—not wealthy. That she had applied to the Ordinary of Harris county for letters of guardianship of the children; that their property in Harris was worth between six and seven thousand dollars; that they also had a large amount in the hands of John C. Boyd, in Chambers county, Alabama, as their guardian and the executor of their father\'s will; that the entire estate of their father is worth some ninety or one hundred thousand dollars; and that the property given to their mother was, the most of it, now in the hands of John C. Boyd, in Chambers county, Alabama.

Col. Ramsay stated (and his statements were allowed as evidence) that he was well acquainted with Mrs. Glass; that her circumstances were comfortable; that she was a woman of fine sense, and quite intelligent; that no one could raise the children better; that her sons were moral, temperate and intelligent men; that her daughters were modest, chaste, and highly respectable; that though the family were not rich, he did not know one more respectable; that he knew old Mr. Glass in his lifetime, and that he was an excellent citizen; that Mrs. Glass was warmly attached to the children; and that she was a strict Presbyterian, and he know she would raise the children properly.

The plaintiff introduced Solon Beale, of Chambers county, Alabama, who testified that he was well acquainted with John C. Boyd, the plaintiff, and knew him to be a man worth about $25,000, —about twenty-eight or thirty years of age, a member of the Baptist Church, a kind, agreeable, clever man. Also, that he knew his wife, who was a good tempered woman—had three children, one of them about six years of age; that she was a highly respectable lady, and a member of the Baptist Church. That John Boyd, deceased, left ten children by his first wife, all of them but one living in Chambers and Tallapoosa counties, Alabama, and all married but three; that one of them, about nine years old, lived with John C. Boyd.

The plaintiff introduced the affidavit of two other citizens of Chambers county, Alabama, certified by the Judge of Probate to be credible witnesses, who testified that they were well acquainted with the plaintiff, and regarded him as a discreet man and of sound judgment, —one well qualified to raise these minors, his halt brother and sister, and consequently a suitable person to become their guardian.

He also introduced a transcript from the Probate Court of Chambers county, Alabama, showing that he had given bond and security for the guardianship of the persons and property of each of these minors, and that on the 18th of October, 1862, the letters of guardianship were granted to him. Also, a transcript from the same Court giving a copy of the will of John Boyd, the father, by which it appeared that he bequeathed to his wife three slaves for her life, with remainder to these children, and, with some other unimportant legacies, gave the residue to his wife, these two children, and the ten children by a former wife, appointing his wife testamentary guardian of her children, without bond, during her widowhood; also, appointing the plaintiff his executor.

The Court, after hearing argument, ordered the writ dismissed at the plaintiff's cost, and that the children remain with defendants; and the plaintiff excepted.

BETHUNE, for plaintiff in error.

Ramsey, for defendants.

Walker, J.

This writ of habeas corpus was sued out by the paternal half brother, to recover possession of two children from the custody of their maternal grand-mother. The petitioner rests his...