Others v. Burch

Decision Date30 November 1855
Docket NumberNo 41,41
Citation19 Ga. 174
PartiesJohn W. Burch and others, plaintiffs in error. vs. John C. Burch, ex'r, &c, defendant in error.
CourtGeorgia Supreme Court

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Caveat on appeal, in Elbert Superior Court. Tried before Judge T. W. Thomas, at September Term, 1854.

The questions in this case arose upon the application of John C. Burch, as the executor of Mrs. Elizabeth Burch, for letters testamentary upon the estate of William S. Burch, deceased. To this application John W. Burch and others, a portion of the legatees under the will, entered a caveat upon the grounds:

1st. That John C. Burch, as executor of Mrs. Burch, wasnot entitled to the letters upon the estate of William S. Burch.

2d. That the will of William S. Burch had been fully executed, and there was no necessity for a representative to said estate.

The following are the wills of William S. Burch and Elizabeth Burch:

In the name of God, amen!

I, William S. Burch, of the State of Georgia and County of Elbert, being weak and infirm in body, but of sound mind, memory and understanding, do make and publish this my last will and testament, in manner and form following, to wit:

First. I recommend myself to God the giver and Creator of all good, sincerely thanking him for all blessings, civil and religious, conferred upon me during my existence in this changeable and uncertain life.

Item. My will is, that all my just debts be paid.

Item. I lend to my beloved wife, Elizabeth, the whole of my estate, both real and personal, during her natural life or widowhood; but if she chooses to marry, then and in that case my will is, that the whole of my estate be taken out of the hands of my said wife, Elizabeth, by my executors, which I shall hereafter name, and be equally divided by appraisement, into three equal shares, share and share alike, and that my said wife Elizabeth take her choice of one share, or one third part of my estate so divided as aforesaid, which share or the one third of my estate so divided as aforesaid, I lend to my said wife Elizabeth after her second marriage, during her natural life; and that the share or one third part of my estate so lent my said wife Elizabeth, be under the management, direction and control of my said executors, for the support of my said wife Elizabeth, after her second marriage, so long as she shall live; and at her death, that the said share or one third part of my estate, so lent my said wife Elizabeth, after her second marriage, under the directions of my executors, to be sold and the monies arising from saidsale to be put into four equal shares, share and share alike; one share or one fourth part of the said monies, I give and bequeath to be equally divided betwixt the whole of the children of Sarah Harden, wife of Henry Harden, she, the same Sarah being sister to my said wife Elizabeth, and is to them, the said children, share and share alike, forever; one other share or one fourth part of said monies I give and bequeath to be equally divided betwixt the whole of the children of Polly Wilbourn, wife of Thomas Wilbourn, she, the said Polly being sister to my said wife Elizabeth, and is to them the said children, share and share alike, forever; one other share, or one fourth part of said monies, I give and bequeath, to be equally divided betwixt the whole of the children of Rebecca Upshaw, wife of John Upshaw, Junior, she, the said Rebecca being sister to my said wife Elizabeth, and is to them, the said children, share and share alike, forever; the other share, or one fourth part of said monies, I give to be equally divided betwixt Mary Ann Cook and William T. O. Cook, heirs of William T. Cook, deceased, he, the said William, being brother to my said wife Elizabeth, and is to them the said Mary Ann and William T. O. Cook, share and share alike, forever.

Item. My will is, that if my said wife Elizabeth should marry, then and in that case, I lend to my sister Betty Cook, one other share or third part of my estate, so divided by appraisement as aforesaid, during her natural life, for her support, which share or third part of my estate, so lent to my said sister Betty, be under the management, direction and control of my executors, for the support of my said sister Betty, so long as she shall live.

Item. If my said wife Elizabeth should marry, then and in that case, my will is, that the other share or one third part of my estate, so divided by appraisement as aforesaid, he so sold, and the monies arising from the said sale he equally divided betwixt my brothers and sisters (to wit): Thomas Burch, Benjamin Burch, Maza Burch, John Burch, Cheadle Burch, Polly Johnson, Jenney Divine, Hannah C. Purkinsand Sarah Kesee, and is to them, my said brothers and sisters, share and share alike forever; but if either of my said brothers or sisters should decease, leaving no child or children, then and in that case my will is, that their part of said legacy be equally divided betwixt the whole of my brothers and sisters above named, and is to each of them forever.

Item. And in case that my said wife, Elizabeth, should not marry, then and in that case my will is, at her death, the whole of my estate, both real and personal, be sold and the monies arising from the same to be put into three equal shares, share and share alike. One third part of the monies arising from the sale of the whole of my estate, I give to the children of Sarah Hardin, Polly Wilburn, Rebecca Upshaw and the two heirs of William T. Cook, as above mentioned; but if either of the above named sisters to my said wife, Elizabeth, should die, having no child or children, then and in that case, for their part of said legacy to be equally divided betwixt the surviving children of the above named sisters to my said wife Elizabeth; and if either of the above named heirs of William T. Cook should die, leaving no child or children, for the other one to receive his legacy; and if both of the said heirs of the said William T. Cook should die, leaving no child or children, then and in that case, for their legacy to be equally divided betwixt the surviving children of the above named sisters of my said wife Elizabeth.

Item. One other share or one third part of the monies so arising from the sale of the whole of my estate, I lend to my sister, Betty Cook, during her natural life, for her support; but the said share, or one third part of my estate so lent, be under the management, direction and control of my said executors, for the support of my said sister Betty, so long as she shall live.

Item. The other share, or one third part of the monies so arising from the sale of the whole of my estate, I give and bequeath, to be equally divided betwixt the whole of my abovenamed brothers and sisters, in manner as above mentioned, and is to each of them forever.

Item. At the death of my sister, Betty Cook, my will is, that the share or one third part of the monies arising from the sale of the whole of my estate, so lent her under the management, direction and control of my said executors, I give and bequeath to be equally divided betwixt the whole of my above named brothers and sisters, in manner as above mentioned, and is to each of them forever.

Lastly. I appoint my well beloved wife, Elizabeth, executrix, and my trusty friend, John Upshaw, Junior, and William Woods, executors of this my last will and testament, utterly revoking all will or wills heretofore made by me.

In testimony whereof, I do hereunto set my hand and seal, this 15th day of May, in the year of our Lord One Thousand Eight Hundred and Seventeen. Signed, sealed and delivered by the testator, as his last will and testament.

WILLIAM S. BURCH. [seal.]

In presence of

Job Western,

Bailey M. Woods,

William Woods.

Georgia, Elbert County:

In the name of God, amen: I, Elizabeth Burch, of said County and State, being of sound mind, but feeble in body; and having long ago passed the period of life allotted to the human race, do make and publish this to be my last will and testament, hereby revoking all others.

Item 1st. I desire all my just debts to be paid without delay, if I should leave any unpaid at the time of my death.

Item 2d. I give and bequeath unto my neice, Mary Ann Burch, widow of Benjamin Burch, and her three children, to be equally divided between them, share and share alike, all the property, real and personal, debts, dues and demands, and all other property, of every kind whatever, which I may die possessed of, or have any right, title or claim to at my death, asmy said neice, Mary Ann Burch, has been a faithful companion and friend to me for many years; and I feel that I shall never be able to repay her for her increasing kindness, care and attention to me in my old age.

Item 3d. I nominate and appoint William B. Bowen and John C. Burch, to be executors of this my last will and testament, with all the rights, powers and privileges which my executors may have or lawfully claim.

In testimony whereof, I have hereunto set my hand and seal, this 8th day of February, in the year 1853.

ELIZABETH X BURCH.

Signed, sealed and published as her last will and testament, in our presence; and signed by us as witnesses, in presence of testatrix and in the presence of each other, the day and date of said will..

Thomas W. Thomas,

Asa Chandler,

Daniel M. Carlton.

Georgia, Elbert County:

I, Elizabeth Burch of said County and State, being of sound mind, but feeble in body, do make and publish this as a codicil to the foregoing will, hereby ratifying and confirming the aforesaid foregoing will, except wherein the same is altered by this codicil.

Item 1st. In addition to the property bequeathed to my neice, Mary Ann Burch, widow of Benjamin Burch, in the foregoing will, I give to her my carriage, carriage horses and harness, over and above her equal share.

Item 2d. Whereas, in said foregoing will, William B. Bowen is named as one of my executors, and whereas he has removed out of the State of Georgia, I hereby nominate...

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6 cases
  • Vaughn v. Mcleroy
    • United States
    • Georgia Supreme Court
    • July 31, 1889
    ...the authorities seem to require the election to be made by all who are entitled to the property. See the Georgia cases just cited; Burch v. Burch, 19 Ga. 174, (2;) 2 Jarm. Wills, (Rand. & T. Ed.) 188, 189; Adams, Eq. (7th Amer. Ed.) marg. p. 137. The text of both Jarman and Adams, as well a......
  • De Vaughn v. McLeroy
    • United States
    • Georgia Supreme Court
    • July 31, 1889
    ...created an executory trust during the life-tenancy, which, of necessity, kept the legal title in the executor during that time. Burch v. Burch, 19 Ga. 185; Griffin v. Fleming, 72 Ga. 697; and cases supra, under the head of trusts. And, more-over, the direction to sell the land alter the lif......
  • Reynolds v. Dorsey
    • United States
    • Georgia Supreme Court
    • July 9, 1941
    ...services rendered by him. However, Dorsey by qualifying as the executor of an executor became the executor of the first testator (Burch v. Burch, 19 Ga. 174; Windsor Bell, 61 Ga. 671(3); Jepson v. Martin, 116 Ga. 772(2), 43 S.E. 75), and as such he was entitled to the commission allowed by ......
  • Jepson v. Martin
    • United States
    • Georgia Supreme Court
    • December 12, 1902
    ...have been called an unrepresented estate. The common-law rule is clearly recognized as being of force in Georgia in the cases of Burch v. Burch, 19 Ga. 174, and Windsor v. Bell, 61 Ga. 675. But, as has been pointed out in the first division of this opinion, while it is true that the petitio......
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