Mealing v. Pace

• Decision Date: 31 January 1854
• Docket Number: No. 76.,76.
• Parties: John Mealing, plaintiff in error. vs. John Pace and others, defendants in error.
• Court: Georgia Supreme Court

14 Ga. 596

John Mealing, plaintiff in error. vs. John Pace and others, defendants in error.

No. 76.

Supreme Court of the State of Georgia

JANUARY TERM, 1854.

Caveat to will. Tried before Judge Iverson, in Muscogee Superior Court, May Term, 1853.

The points made in this case, are all included in the motion for a new trial, which was made upon the following grounds:

1st. Because, at the time of the trial of said cause, which was had on the 11th day of June, 1853, to wit: at said Term, the said Court was illegally held, and the proceedings at said trial had, were void for this, to wit: that on Saturday, the 14th day of May, 1853, said Court, being then in session, was ad-journed over till Monday, the 23d day of said May, that on Sunday, the 22d day of May, 1853, John R. Sturgis, the Clerk of said Court, died; that Monday, the day following, His Honor, Judge Iverson, attended at the Court House, in said county, with the Sheriff and others, and ordered the said Sheriff to open Court, which he did, by proclamation; and after a short time, on account of the death of said Sturgis, His Honor again ordered said Sheriff to adjourn said Court, until the hour of 9 o\'clock the next morning; that on the next morning, said Court was opened according to adjournment, and there being no Clerk, the said Judge then appointed Abraham B. Ragan as Clerk of said Court, for the time being; and after remaining a few minutes, said Judge, Sheriff, and others, left the Court House, without adjournment, His Honor saying he would suspend business informally, and without adjournment, until Monday, the 6th day of June then next, at 10 o\'clock, a.m.

2d. Because said verdict was contrary to law.

3d. Because said verdict was contrary to evidence.

4th. Because said Court erred in refusing, when requested by caveator, to charge the Jury, that if the will propounded disposes of real and personal property, and has an attesting clause, but no witnesses, they must find against the will, as to the personal as well as the real property, unless the testator declared it as his intention that it should be good as to his personal estate.

The following is the brief of the evidence in behalf of Pro-pounders:

Testimony of Mrs. Mary Pace, in behalf of Propounders, by interrogatories.—To the first interrogatory, she answers: She knows the parties.

Second Interrogatory.—Please state whether you freely and fully sign the release hereto annexed, and whether, after signing and sealing the same, you have any interest, either directly or indirectly, in the event of this suit, or in the establish-merit of the last will and testament of your late husband, William Pace, senior, deceased, or in his estate, with or without said will?

Answer.—To the 2d interrogatory she answers: I freely and fully, of my own accord, sign the release referred to. I have no interest, either direct or indirect, in the event of this suit; neither have I, in the establishment of the last will and testament of William Pace, lately deceased, or in his estate, with or without said will.

Interrogatory Third.—Please look upon the original paper hereto annexed, purporting to be the last will and testament of said William Pace, senior, and state all you know about it?

State in whose hand-writing it is, and whether you are acquainted with the hand-writing, from having seen the party write?

State if you know when and where it was written, and all the facts and circumstances by which you are enabled to state the time and place?

Answer to Interrogatory Third.—I have examined the paper referred to, and know it to be the will and wish of my late husband, William Pace, senior, that his personal estate should be bequeathed, as stated in said will. It is in the hand-writing of my late husband, and I know it to be the last will he made. The will referred to was written in the month of July or August—about the last of July or the first of August, in the year 1850. It was written at his residence, in Muscogee county.

Interrogatory Fourth.—Look, particularly, upon the interlineations in said will, and state in whose hand-writing they are, and all you know about their being made, and why they were made?

Answers to the Fourth.—I have examined said will, and the interlineations, and it is in the hand-writing of my deceased husband. I saw him write the name of Chany, in the place of Lany, whose name was first written in the body of the will; and he done it at my suggestion. After he had written the will, he called me up, (I was lying down,) and read it over to me, and wished to know if I was satisfied with it. I statedthat as Lany was old, I would prefer her to stay with the children, instead of being sent to Alabama,, the place where William Pace, Jr., resides, and requested him to do so; and he then made the erasure, and wrote the name of Chaney in lieu thereof; and as Lany was old, and had been a faithful servant, requested, in his will, that his children should take care of her, after my death.

Interrogatory Fifth.—Look upon the names of the negroes mentioned in said will, and state if any of them, and which if them, were born since February, 1847, and when such negroes were born, and how you know the time when they were born?

Answer to Interrogatory Fifth.—The negro girl Chany was born in August, 1847; the negro girl Susan was born in the month of May, 1849. I know these facts from a private record kept by my late husband, of the births of his negroes; also from the fact of the marriage of my grand-daughter, Nancy Pace.

Interrogatory Sixth.—Relate all you know or remember, in relation to said will, hereunto annexed, that will go to show that it is the last will and testament made by your husband, and that he was of sound and disposing mind and memory, when he made it?

Answer to the Sixth.—I know that the paper referred to, is the last will and testament of my late husband, from the facts stated in my answer to the fourth interrogatory; and I am fully assured that at the time the will referred to was made, my late husband was of a sound mind and memory, and well understood what he was doing; and from my long acquaintance with him and his individual affairs, he showed no want of his usual memory, up to the time said will was made.

CROSS INTERROGATORIES.

First Interrogatory.—At whose instance or persuasion do you sign the annexed release, and what is the understanding under which you do so? State fully.

Answer to the First.—I signed the release at the persuasion of no one, but of my own accord, as stated in my first answers.

There is no understanding with any person about signing the same.

Second Interrogatory.—In whose hand, and where did you first, after his death, see said paper writing, purporting to be the will of William Pace? How long after his death was it that you first saw said paper writing? Did you see the same, or any part of it, written?

Answer to the Second.—Three days after the death of my husband, the will referred to was found in the desk of my late husband, and was taken out, I think, by Jesse Cox, Esq., and a part was then read by him. I saw it wrote, as stated in my direct answer.

Third Interrogatory.—Why did said William Pace so dispose of property? Why did he not make all of his children equal in the division of it? What prejudice had he against the children of his deceased daughter, formerly wife of James G. Burt? Was he not desirous of putting them as nearly as possible upon the same footing with his other heirs? What did he say about this, and when and how came he to say so?

Answer to the Third.— William Pace, senior, my late husband, made this disposition of his property, because it was his wish and will to do so. He had given others property before, and said he had given them all he intended to give them; he had no prejudice against the children of James G. Burt; and it will appear, by reference to the annexed will, that they have received some ten negroes; and he considered them provided for, and said he should give them no more.

Fourth Interrogatory.—Was said William Pace disposed to prefer some of his children to others, and if so, what was the occasion of his dislike of the children of said daughter?

Answer to the Fourth.—I do not know that my husband was disposed to show any preference to some of his children over others, neither was there any dislike, that I know of, to the daughters of Mr. James G. Burt, his grandchildren.

Fifth Interrogatory.—When was the word "Chany" interlined in said writing? how long after the rest was written? and relate all you know to benefit caveator, &c.

Answer to the Fifth.—I have already answered that question in my direct answers. I have stated fully all I know.

(Signed) MARY PACE.

RELEASE, ATTACHED TO INTERROGATORIES.

Georgia, Harris County.

These presents witness that I, Mary Pace, widow and relict of William Pace, senior, late of Muscogee county, deceased, do hereby, for the consideration of one dollar, as well as for and in consideration of the love and affection which I bear my children, who are legatees under the last will and testament of said deceased, do hereby relinquish all manner of right and claim which I may have on the personal estate and property of said deceased, either under his last will and testament, or otherwise; and do likewise hereby renounce all claim and right to administer said estate as executrix, next of kin, or otherwise; and all manner of interest, either as executrix, or heir, or legatee, in the said personal property, left by said deceased, whether embraced in said will or not.

In witness whereof, I have hereunto set my hand and seal, this 11th day of April, 1851.

MARY PACE, [SEAL.]

Signed and sealed in presence of

Michael N. Clarke,

Jesse Cox, J. P.

WILL PROPOUNDED, ATTACHED TO THE INTERROGATORIES.

Georgia, Muscogee County:

In the name of God, Amen. I, William Pace, senior, of the county and State aforesaid, being in perfect mind and memory, but weak in body, and calling to mind the mortality of my body, and...