Lively v. Paschal

• Decision Date: 31 December 1866
• Citation: 35 Ga. 218
• Parties: SUSAN W. LIVELY, plaintiff in error. v. MARY A. PASCHAL,Administratrix of WILLIAM R. PASCHAL, deceased, defendant in error.
• Court: Georgia Supreme Court

35 Ga. 218

SUSAN W. LIVELY, plaintiff in error. v. MARY A. PASCHAL, Administratrix of WILLIAM R. PASCHAL, deceased, defendant in error.

Supreme Court of the State of Georgia

(Milledgeville, December Term, 1866.)

In Equity. In Putman Superior Court. Bill pray-ing *the assignment of dower. Tried before Judge A. Reese. September Term, 1866.

This bill was filed in August, 1862, by the plaintiff in error, against the intestate of defendant in error, to obtain dower out of the lands of which Lewis P. Harwell, a former husband of Mrs. Lively, the plaintiff in error, died seized; which lands Paschal, the defendant in the bill, claimed as a purchaser after Harwell\'s death from one acting as, and supposed to be, his executor. The fact that induced the demandant to proceed in Equity, rather than in a Court of law, was, that she, herself, was administratrix upon her said deceased husband\'s estate.

Harwell died in August, 1858, and the demandant claimed dower in these lands within one year thereafter, though the present bill was not filed until 1862.

The bill was defended on a single ground, namely, that the demandant's right to dower was barred by the acceptance of a provision in lieu thereof. The material facts bearing on this defence are the following:

Mrs. Lively, before her marriage with Harwell, was a Miss Fielder, daughter of Richard and Elizabeth Fielder. In 1835, after the death of Richard Fielder, Harwell executed the following:

"Received, Eatonton, February 18th, 1835, of E. Fielder, twelve bags of cotton, now in Augusta, which I have an order on, and made in full payment of all my interest in the property of my wife, which is coming to her after her mother's death from the estate of Richard Fielder; and, also, that part that will fall to her from the will of her grandmother, Amelia Berford. In witness whereof I have hereunto set my hand and seal." (Signed by Harwell, and attested by two witnesses.)

In 1841, the said Elizabeth Fielder, by deed of gift, conveyed to Joseph Johnson the legal estate in the property conveyed to her by the foregoing instrument, declaring in said deed of gift that "the proceeds and uses of which" *(said property) "are for the sole benefit of the said Susan W. Harwell, for and during her natural life, " and said property, "upon the death of said Susan W. Harwell, to be divided among her brothers and sisters, if said Susan W. shall die without child or children."

In 1851, commissioners appointed by the Ordinary to make distribution of the estates of Richard and Elizabeth Fielder, (the latter having died in 1850,) set apart to Harwell, as his share, in right of his wife, fourteen negroes, valued at $7,725, with a charge thereon of $31 25, in favor of another distributee.

In 1852, Harwell and wife executed the following:

"Georgia, Putnam county.

Whereas, by a recent division of the negro property of Richard Fielder and Elizabeth Fielder, of said county, deceased, the negroes hereinafter mentioned were assigned to Lewis P. Harwell, in right of his wife, Susan W. Harwell, as heir and distributee of the said decedents; and whereas, it has long been the intention and desire of the said Lewis P. Harwell, and stillis his desire and intention, to vest the absolute ownership of all the negro property which has come or may come to his said wife by inheritance, in her, for her sole and separate use, without restriction by reason of the rights of said Lewis P. Harwell: Now, this indenture, made and entered into this —— January, 1852, between Lewis P. Harwell, of said county and State, of the one part, and Susan W. Harwell, of the same place, of the other part; Witnesseth, that the said Lewis P. Harwell, for and in consideration of his natural love and affection for his said wife, Susan W. Harwell, as well as in consideration that the said Susan W. Harwell has hereby relinquished, and does hereby relinquish, all her right, title and interest to dower in the lands of which said Lewis P. Harwell may die seized, hath given, granted, bargained, sold, &c, and doth, by these presents, grant, bargain, sell, &c, unto his said wife, for her sole and sepa-rate use, the following *negroes, to-wit, (describing them,) together with the increase of said negroes, and whatever other negroes may come to said Susan W. Harwell by inheritance, with power on the part of said Susan W. to dispose of the same absolutely, and according to her will and pleasure, by her last will and testament, or writing in the nature of the same, at her death. Provided, however, that if said Lewis P. Harwell should survive said wife, then said property shall remain to him, for his own use, during his natural life, and...