Lunday v. Thomas

• Decision Date: 30 November 1858
• Citation: 26 Ga. 537
• Parties: Robert Lunday and Wife, plaintiffs in error. vs. Francis Thomas, et al., defendants in error.
• Court: Georgia Supreme Court

26 Ga. 537

Robert Lunday and Wife, plaintiffs in error. vs. Francis Thomas, et al., defendants in error.

Supreme Court of the State of Georgia

NOVEMBER TERM, 1858.

In Equity, in Laurens Superior Court. Tried before Judge Love, October Term, 1858.

This was a bill originally filed by Ann Jane Hampton, against Francis Thomas, administrator of Robert T. Coates, deceased. Subsequent to the filing of the bill, complainant intermarried with Robert Lunday, who was made a co-plaintiff.

The bill in substance alleged, that said Robert T. Coates departed this life in September, 1852, possessed of a large estate, consisting of lands, negroes, notes and money; that during his last illness he made a nuncupative will, whereby he bequeathed to complainant all the property he inherited from his grandfather, John Thomas, deceased, and the residue of his estate he bequeathed to his two half-brothers, Edward J. Coates and John G. Coates; that complainantwas the maternal aunt of deceased; that said Edward J. and John G. Coates are minors, and William R. Steely their guardian, duly appointed by the proper Court.

The bill further states, that after the death of the said Robert J. Coates, complainant propounded said nuncupative will for probate in the Court of Ordinary of Laurens county, to which said Steely, as guardian aforesaid, filed a caveat; that the Court of Ordinary pronounced against said will; from which decision complainant appealed.

Pending the appeal, complainant and Steely made and entered into the following compromise and agreement, to wit: That the negroes which deceased obtained from his grandfather, John Thomas, be divided into three equal portions or lots, one of which was to belong to complainant, one to Edward J. Coates, and one to John G. Coates; the portion set off to said minors to be delivered to their guardian. Also, that the notes and money belonging to deceased, received from his grandfather, or arising from property thus received, be divided into two equal parts; one of which was to be paid or turned over to complainant, and the other to said Steely, as guardian aforesaid.

The bill further states, that upon this agreement and compromise, a verdict was taken in the appeal case in favor of complainant, as propounder of the nuncupative will, and the same was set up and established.

The bill further states, that the defendant, Francis Thomas, was the administrator of Robert T. Coates, deceased, and had the possession of his entire estate, and that he refused to turn over and pay to complainant, the share or portion of said estate to which, under said agreement, she was entitled. And the prayer of the bill was that the defendant be compelled so to do.

Steely and the two minors, Edward J. Coates and John G. Coates, were afterwards made parties defendant to complainant's bill.

Francis Thomas, the administrator of Robert T. Coates, answered, admitting the facts as to the death of his intestate, and the proceedings in relation to the alleged nuncupative will, and that defendant had been appointed administrator, &c, but he denied that his intestate made any nuncupative will, and that the one proposed to be set up was invalid as such, not being made in pursuance of law. He also denied the validity of said agreement and compromise made between them, complainant and Steely, on the ground that Steely was not the guardian of said minors, the young Coateses, at the time.

The answer of Steely admitted the facts stated in the bill, as to the death of Robert T. Coates, and the proceedings had at the instance of complainant, to set up a nuncupative will; and pending these proceedings, complainant and himself did make and enter into a compromise and agreement, of and concerning said suit, as stated in said bill; but defendant submits that he had no authority to make any agreement or compromise in relation thereto, that would be binding on the said Edward J. and John G. Coates, minors and sole heirs at law of deceased. That he had been appointed their guardian by the Probate Court of Marshall county, in the State of Alabama, while he resided in said State; that he afterwards removed to and became a citizen of the State of Georgia; and it was after his removal to this State, that said proceedings were had, and said agreement and compromise made; and when, as he insists, his authority and powers as guardian under the appointment in Alabama had ceased and determined. Defendant further submits and insists, that said compromise is invalid, and not binding upon the heirs at law, upon the grounds that the same was made, in part, upon other considerations than those therein stated, and in prejudice and fraud of the rights and interests of said Edward J. and John G. Coates—one and the main reason and consideration to his entering into said compromise and agreement being the promise made to him by Andrew Y. Hampton, the executor of John G. Coates, deceased, that if said case was set-tled, and said nuncupative will admitted to probate, that he, Hampton, would deliver to this defendant the land and negroes, and other property coming to him in right of his wife, from the estate of said John G. Coates. Defendant says that said Hampton has not, however, paid or delivered to him said property; neither has Thomas, the administrator, paid or delivered to him, as guardian aforesaid, the estate of said minors, in his hands, and that thus the two main considerations for said agreement have failed.

Upon the trial complainants, amongst other evidence, introduced William S. Rockwell, Esq., to prove the destruction of the original agreement set forth in the bill, and that the copy offered was a correct copy thereof. The witness was then turned over, and defendants proposed to examine him generally, touching the facts of the case.

Complainants objected to the witness stating any terms, stipulations or agreements, outside the written contract. The Court overruled the objection, and complainants excepted.

Defendants then proposed to ask the witness relative to an order written by him for Andrew Y. Hampton to sign, for the purpose of obtaining a commission from the Ordinary of Laurens county, to divide the estate of John G. Coates, deceased, and the contents thereof, it being first proved that the order was delivered to Hampton, and that he was beyond the jurisdiction of the Court. Compjlainants objected; the Court overruled the objection and admitted the testimony, and complainants excepted.

Defendants then proposed to show by this witness, that a fraud had been committed by complainants, through a third person, not a party to the record, but her agent, in procuring the agreement and compromise set out in complainants' bill. Complainants objected to this proof. The Court overruled the objection, and complainants excepted.

Defendants then proposed to prove by Rockwell, the result of calculations made by him, upon vouchers and returns, as to the indebtedness of John G. Coates' estate to him, as executor; the calculation itself, the vouchers or returns, were not offered. Complainants objected; the Court overruled the objection, and complainants excepted.

Complainants, in rebuttal, tendered in evidence the sworn answer of Andrew Y. Hampton, to a bill filed by Steely and wife against him, for an account and distribution of the estate of John G. Coates, deceased, and which contained his vouchers and returns of the indebtedness of said estate to Hampton, as executor, and the amounts received by him. The Court repelled this testimony, and complainants excepted.

The testimony being closed, complainants requested the Court to Charge:

1st. That Courts of Ordinary in Georgia are Courts of general jurisdiction. They are clothed with original and exclusive jurisdiction, (except by appeal), in the broadest terms, over testate and intestate estates.

2d. That the probate of a will in Georgia can be revoked only by appeal to the Superior Court; and the verdict of a special jury in such case is conclusive.

3d. That a Court of Equity has general and concurrent jurisdiction with Courts of Law, in all matters of fraud, except fraud in obtaining a will; and if the will be of personalty, then it is cognizable only in the Court of Ordinary.

4th. It is the legal consequence of the exclusive jurisdiction of the Ecclesiastical Courts, in matters relating to the validity of wills, that their decisions are conclusive of the right determined; hence, a probate of a will in said county is conclusive, both in law and equity, as to the validity of such will, so far as it embraces personalty, and it can not be impeached for fraud.

5th. That the judgment of the Court of Ordinary, admitting a will to probate, is conclusive against all the world, and not re-examinable by any other Court.

6th. That a verdict cures all defects in pleading, and alsoall defects that could have been taken advantage of before verdict.

The Court refused so to charge, but told the jury that the charge above requested to be given them was law, but it did not apply to the case, as the validity of the will of Robert T. Coates was not in issue before them; that this bill was filed to enforce the agreement, and not the provisions of the will; that the provisions of the two were altogether different, and there was no necessary connection between them.

To which charge and refusal to charge complainants excepted.

Counsel for complainants requested the Court to charge, that an admission by a party is more conclusive, and to be taken stronger against him than the verdict of a jury. The Court refused so to charge, but stated to the jury that this principle of law, though correct, applied to adults, but not to infants; and complainants excepted.

Counsel for complainants requested the Court to charge, that guardians of minors had the right to compromise for their wards, where the compromise was for their interest, and a Court of Equity will enforce the same. In lieu of this, the Court charged the jury, that this principle of...