Porter v. Thomas

• Citation: 23 Ga. 467
• Parties: Charles A. C. Porter, plaintiff in error. vs. Francis Thomas, executor of Mary Jones, deceased, defendant in error.
• Decision Date: 30 November 1857
• Court: Supreme Court of Georgia

23 Ga. 467

Charles A. C. Porter, plaintiff in error. vs. Francis Thomas, executor of Mary Jones, deceased, defendant in error.

Supreme Court of the State of Georgia

NOVEMBER TERM, 1857.

Trover, in Laurens Superior Court. Tried before Judge Love, October Term, 1857.

Trover by Francis Thomas, executor of the last will and testament of Mary Jones, deceased, against Charles A. C. Porter, for seventy-eight negroes.

Pleas: The general issue, and that defendant was in possession of said slaves only as the overseer of James V. Jones, Joseph B. Jones, Henry W. Jones, and William B. Jones, executors of Henry P. Jones, deceased, to whom the property belonged at the time of his death. That said negroes were in fact in the possession of said executors, and that de-fendant was subject to their direction, and authority in the management of said property, and that otherwise the same was never in his possession, &c.

John Fulwood of the county of Laurens, died about 1829, leaving a will by which he disposed of his whole estate, as follows:

"I will and bequeath to my beloved wife, Mary Fulwood, all my property, both real and personal, to be at her control during her natural life. I further will and request that at her death she makes such disposition of it as she may think best."

The widow of John Fulwood afterwards intermarried with Henry P. Jones, who died in 1853, leaving her surviving.

Henry P. Jones duly made and executed his last will and testament, which after his death was proved and admitted to record.

On the 17th November, 1853, shortly after the death of Henry P. Jones, Mary Jones, his widow, executed and delivered to Joseph B. Jones, We B. Jones, James V. Jones and Henry W. Jones, an instrument under seal, by which, after referring to a power of appointment in the will of her first husband, John Fulwood, she conveyed to said parties all the lands and negroes and property of every kind, of which Henry P. Jones her late husband, became possessed by virtue of his marriage with her, and which she claimed the power to dispose of by virtue of the will of her first husband, John Fulwood (not including a plantation which she had previously given to her grandson, John Thomas Fulwood,) in trust for her use during her life, as specified in the will of the said Henry P. Jones, and at her death to be disposed of and vest as in said will of Henry P. Jones, is mentioned and provided; and if it should turn out that said Henry P. Jones made no will, then in trust after her death, to the heirs atlaw of said Henry P. Jones, agreeably to the statute of distributions of this State.

Afterwards on the 11th July, 1856, said Mary Jones, executed her last will and testament, by which she devised and bequeathed the same property to her executors, in trust for her grand-son, John Thomas Fulwood, and shortly thereafter died. The plaintiff, Francis Thomas, was the only person named as executor, who qualified. The negroes were in the county of Laurens, employed on the land under charge of the overseer, Charles A. C. Porter, the defendant. The executors of Henry P. Jones, resided in the county of Burke.

Francis Thomas, the executor of Mrs. Mary Jones, brought this action of trover against the overseer on the plantation in Laurens county. Affidavit was made, and under the provisions of the Act of 1821, the defendant entered into bond for the forthcoming of the negroes.

Upon the trial, on the appeal, the plaintiff offered in evidence the will of John Fulwood, deceased. Also the will of Mary Jones, formerly Mary Fulwood. He then proved that defendant was the overseer of the executors of Henry P. Jones, and that they all resided in the county of Burke, the value of the negroes, demand and refusal, and closed.

Defendant introduced the deed executed by Mary Jones, and the will of Henry P. Jones deceased, and closed.

The Court charged the jury:

1st. That the action was rightly brought against the defendant, who was the overseer on the plantation, and had charge of the negroes as overseer of the executors of Henry P. Jones, deceased; and that plaintiff had as much right to sue him, though he was only overseer as to sue the executors who were the real owners.

2d. The Court after reading to the jury the case of Hollingshead vs. Alston, (13 Ga. Reports, 277) charged them that the Supreme Court had in that case determined this case;that they were in substance the same, and that the clause in the will under consideration in the case of Hollingshead vs. Alston, was the same in substance, as the clause in the will of John Fulwood, and that Mrs. Jones had no power to make the deed under which defendant claimed.

3d. The Court further charged, that Mrs. Jones had not the power to alienate the property during her life, and any deed executed by her alienating the same was void, and her only power of disposition, under that will of John Fulwood, was by will.

4th. The Court further charged the jury, that the particular character of the estate which Mrs. Jones took under the will of her first husband, John Fulwood, was not important in the determination of this case; for whether she took a life estate with the power of appointment or a separate fee coupled with power, both parties claimed under and by virtue of what they considered an execution of the power. That the controlling legal question in the case, was, as to when or how the power could be executed. The opinion of the Court was that the widow of John Fulwood was restrained by his will from alienating the property during her natural life, that any deed she might make would be an alienation during life, and that consequently the only mode in which she could dispose of it, was by will.

The Court refused to give in charge to the jury the requests made by defendant's counsel.

To all of which charge and refusal to charge, counsel for defendant excepted.

The jury found for the plaintiff forty-six thousand nine hundred dollars, to be satisfied and discharged by the delivery of the negroes within twenty-five days; and five thousand seven hundred and one dollars and twenty-five cents, for the hire, to be paid in money.

Whereupon counsel for defendant tender their bill of ex-ceptions, and assign as error the charges and refusals to charge, herein excepted to.

I. L. Harris and W. S. Rockwell, for plaintiffs in error.

A. H. Chappell, for defendant in error.

By the Court. —McDonald, J., delivering the opinion.

The first assignment of error presented in the record, is on the charge of the presiding Judge in the Court below, that this action was rightly brought against the defendant who was the overseer of the executors of the will of Henry P. Jones, and in that capacity had charge of the slaves sued for.

The gist of the action of trover is the...