Redd v. Hargroves

• Decision Date: 31 December 1869
• Citation: 40 Ga. 18
• Parties: JAMES K. REDD, propounder, plaintiff in error. v. SOPHIA W. HARGROVES et al., defendants in error.
• Court: Georgia Supreme Court

40 Ga. 18

JAMES K. REDD, propounder, plaintiff in error. v. SOPHIA W. HARGROVES et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, December Term, 1869.)

Emancipation by Will. Before Judge Worrill. Muscogee Superior Court. May Term, 1869.

Redd propounded, as the last will of Owen Thomas, a paper, duly executed on the 25th of February, 1852, containing the following bequests.

*"Item 1st. I desire all the debts I may owe, if any, promptly paid.

Item 2d. I give and bequeath to Thackery B. Howard\'s wife, and her children, the debts and demands of every kind I hold upon him, and the moneys accruing or to accrue thereon, exclusive of the husband and his creditors.

Item 3d. I desire that my negroes, Griffin and his wife Esther, and their children now born, and such as they may hereafter have, (and others with their children born or to be born, naming them,) to be conveyed to Liberia, or any other free State, foreign to Georgia, into which they severally elect to go, and in which they may lawfully reside, and there to be forever manumitted and freed, they and their posterity.

Item 4th. I desire all the residue of my negroes, my lands, stocks, crops and property of every kind sold for cash, and the proceeds of sales, along with moneys in hand, collections of debts of every class due me, (excepting always the debts of Thackery B. Howard, as specified,) converted into a common fund, to be disposed of as follows, viz: so much as may be required to the payment of debts, the defrayal of the expenses incidental to the execution of my will, the subsistence and removal to their new and contemplated homes of such of my negroes as are intended to be manumitted and freed, and the residue by eventual division among my negroes who shall thus become free.

Item 5th. I give to my executors, each, the sum of $1,500 00 as fixed and full compensation for the execution of this will; to Griffin (the father) and Maria, each, the sum of $2.500 00, exclusive of, and additional to, what they receive in common with the other freed negroes. These several sums being abstracted and appropriated, I wish the remainder divided into as many parts as there are freed negroes in number, and one part paid to each person eighteen years of age, on his or her arrival in his or her new home, without regard to marriage or sex, including said Griffin and Maria, and the remaining parts divided among the parents of children in the precise proportion the several families of children to each other.

*Item 6th. The bequest to Mrs. Thackery B. Howard, to-wit, Sarah G. and her children, is designed to include children she may have hereafter, as well as those now born, to be a joint one to Mrs. Howard and her children, and to be sole and separate to her use as between her and her husband and the creditors of the husband, and to include the transfer, assignment and control of a mortgage, with its lien, made by said Howard to me on the nineteenth day of February, eighteen hundred and forty-nine, and under judg-merit of foreclosure in the Court of Chancery in Russel county, Alabama, at this time, as more especially provided for in a separate instrument of even date with this, attested by the same witnesses, and which I hereby recognize and confirm as part and parcel of this my last will and testament.

Item 7th. I nominate and appoint James K. Redd, of Muscogee, in the State of Georgia, and Augustus Howard, of the county of Russell, in the State of Alabama, executors of this my last will and testament."

Sophia Hargroves et al., heirs-at-law, filed a caveat thereto, upon the following grounds:

1st. Said writing was prohibited by the statutes of Georgia.

2d. It is a writing which can not possibly be executed as a will, or otherwise.

3. It contains divers conditions which were to happen or be performed before any legacy to any negro therein mentioned could vest or have any effect, and which conditions are not fulfilled nor can be fulfilled.

4. It was the testator's intention that the writing should not have effect as a will unless his negroes therein mentioned and referred to should remain with him as his slaves until his death, and during all that time should serve and obey him as his slaves; and these caveators say that long before the death of said Owen Thomas, viz: three years, the said negroes accepted the emancipation proclaimed by the President and confirmed by the State Convention, and abandoned and deserted the said Thomas, and never again acknowledged him as master or served him. as slaves.

5th. Said writing, if ever valid as a will, was revoked *and annulled by the Act of 1859, "To prohibit the post mortem manumission of slaves, " and the same was never afterwards republished as the will of said Thomas, or otherwise revived.

6th. The change of circumstances brought about by emancipation is so great as not only to authorize, but to require, the presumption that it was not the intention of said Thomas at the time of his death that said writing should be his will.

It was pending on appeal in the Superior Court.

It was admitted that Thomas died on the 28th of September, 1868, without having ever married, and that said paper was his last will and testament, unless said grounds of caveat rendered it a nullity.

The Court charged the jury that all of said paper was void, except the 1st, 2d, 6th and 7th items. This is assigned as error.

Ramsey & Ramsey, Ingram & Crawford, Williams & Thornton, for plaintiff in error, said the paper was good as a will when made, (1852,) unless prohibited by Acts of 1801 and 1818, and that did not prohibit it: Vance v. Crawford, 4th Ga. R., 445; 10th Ga. R., 263; 16th Ga. R., 517; 18th Ga. R., 130; 19th Ga. R., 35; 31st Ga. R., 38; 25th Ga. R.; 109, 428; 38th Ga. R., 655. It was good at Thomas\' death, (1868): Constitution 1865, Art. 5, par. 4; Constitution 1860, Art. 11, sec. 3: Act of 1859 did not effect this will made before it and taking effect after it. The law at the death must control: 18th Ga. R., 1; 25th Ga. R., 660; 23d Ga. R., 431; 38th Ga. 61; Code, sec. 2364: In any event Redd\'s appointment was good: 22 Ga. R., 30.

J. M. Russel, H. L. Bennin, Peabody & Brannon, for defendants, said a will has virtue from its date, though it takes effect only after death of testator. If made by an insane man, his subsequent sanity does not make it good, and vice versa: 1 Williams' Ex'rs, 17 marg.; Ibid. 103, note vv; 1 Russ & M., 355. So of a minor's will: Sec. 2371 Code. Will of feme sole, destroyed by coverture, but not restored by death of husband: Wms. Ex'rs, 106; 2 Brown's Ch., 544; *2 Tenn., 695, 697; 4 Coke R., 60, and so in many like cases; 1 Wms. Ex'rs, 106; 1 Phillim, 342; 1 Lord Raymond, 441; 2 Sol. K., 192; 4 Burr, 2167, 2171; Irwin's, Code, sec. 2362, 2435; Jarman's 4th Rule; Redfered on Wills, part 1, 425, note 6. Having force from its date, it was void by reason of emancipation of slaves: Act 1859; section 1878, 4905 New Code. Nor is republication presumed: Irwin's Code, sec. 2442, 2436; 1 Jar. on Wills, 112; 1 Phil. 339, 442; 4 John. Ch. R., 515, 519; 1 Robt. on Wills, 326; 2 P. Wms., 524; 2 B1. Com., 499; 4 Burns' Eccl. L. C, 47; 2 T. R., 624; 1 Redfered on Wills, 293-4, sec. 5; Ibid. 2d part, 669, sec. 19; 1 Roper on Leg., 250; 1 Jarm. 132-3; Brown's Law Max., 77; Act 1859 not repealed; New Code, sec. 4984. Repeal does not make good a void paper: Dwar. on Stat., 675; 34 Ga. R., 483. Subsequent change can not affect vested rights: Irw. Code, secs. 4903, 4906. If bequest be to servants and they quit service, it is adeemed. 2 Wms. on Ex'rs, 833; 2 Ch. R., 162; 8 Vin. Abridg., 311. So if they be sold: 14 John. R., 324; 1 Wms. on Ex'rs, 112, note 1. Cy pres applies only to charities: Cobb's N. D., 983; New Code, secs. 1876, 1878; Irwin's Code, sec. 3099; 2 Story's Eq., sec. 1182-3. Emancipation was a war measure: Con. 1865; Irwin's Code, sec. 4909; 2 Story's Eq., secs. 1182-3-4. The charitable intent not yet manifest and definite: Irwin's Code, sec. 3099; 18 Ga. R., 129, 135; 21 Ga. R., Dane ex'r, v. Beall; 22 Ga. R., 28; 34 Ga. R., 460, 483. If circumstances change, presumptive change of testator's wishes: 1 Wms. on Ex'rs, 104-112, inclusive; Irwin's Code, sec. 2362, 2368; 1 Rob. on Wills, 355; 1 Ross on L., 123; 4 Ves., 808; 2 Ch. R., 162; 2 Wms. on Ex'rs, 834; 1 Red. on Wills, 425, note (a.) If will takes effect at death only, there were no slaves, and therefore it is void. Every clause for emancipation is void, and executors were appointed for that purpose, and their appointment is void: 22 Ga. Rep., 28; 21 Ga. Rep., 21. The heirs are favored: Powell on Dev., 548; 2 Vern., 340; 1 Jarm., 465; 12 Ga. R., 163. Statutes, etc., may take awayright before death of testator: 25th Ga. Rep., 650. Statute of Uses: 1 Roll\'s *Abridg, 617; Dev. Anderson\'s R., 7; 18 Ga. R., 1; 2 P. Wms., 624; 2 Brown\'s Ch., 534; Ansb., 627; 2 B1. Com., 499; 4 Burns\' Eccl. L, 647; 4 R., 60; 1 Phil., 342; Irwin\'s Code, sec. 2445; Powell on Dev., 516, 517, 530, 547-8; Doug. R. 38; 1 Phil., 342; 2 Ch. R., 162. If condition impossible, will bad: Dudley\'s R., 94; 2 Vesey\'s R., 340; Bl. Com., 157. Precedent conditions must be literally performed: 1 Ves. R., 83; 1 Ves., Sr., 191; 2 W. & S., 146; 2 Bl. Com, 154; 6 Ves., 608.

WARNER, J.

On the 25th of February, 1852, Owen Thomas, the testator, made and executed his will, by one clause of which he desired that certain negro slaves...