Roby v. Boswell

• Decision Date: 30 June 1857
• Parties: Richard R. Roby et al, plaintiffs in error. vs. Lucius J. Boswell (by next friend), defendant in error.
• Court: Georgia Supreme Court

23 Ga. 51

Richard R. Roby et al, plaintiffs in error. vs. Lucius J. Boswell (by next friend), defendant in error.

Supreme Court of the State of Georgia

JUNE TERM, 1857.

In Equity, from Lee Superior Court. Tried before Judge Allen, at March Term, 1857.

This bill was filed by James J. Keaton (as the next friend of Lucius J. Boswell), against Richard R. Roby and John B. Vanover, and charges that in 1845, Thomas Howard, of the county of Baker, departed this life intestate, leaving a large estate both real and personal. That he left a number of children, among whom was his daughter, Mrs. Malinda Boswell, wife of William Boswell and mother of Lucius J., who was born in the lifetime of his grandfather, the said Thomas. After the death of said Thomas, and after the said William Boswell had received a portion of his distributive share of the estate, in right of his wife, he died, leaving his wife, the said Malinda, and the said Lucius J., as his only heirs and distributees. After the death of her husband the said Malinda intermarried with Roby, the defendant; and the administrator of Thomas Howard's estate dying, administration de bonis non was granted to John B. Vanover, who proceeded to the final administration and distribution of said estate, and who, from the proceeds of lands sold and notes collected, paid over to Roby about the sum of three thousand dollars, as the residue of the share of his wife in her father'sestate. That Roby claims the whole of said sum as his own in right of his wife, and denies that said Lucius J. Boswell is entitled to any part thereof. That Roby is guardian of said Lucius. The bill prays that one-half of said amount be decreed to belong to said minor, and that Roby be compelled to account for the same as a part of the estate of his ward.

Roby answered the bill, and admitted the death of Thomas Howard as stated in the bill. But denied that Malinda married Boswell in the lifetime of her father; but that said marriage and the birth of the said Lucius did not take place until after Thomas Howard's death. He further answers, that Boswell, her first husband, received his share of the negroes and of the estate before his death, which happened in the latter part of the year 1846, and this is the only portion of said estate he reduced to possession in his lifetime. On the 1st August, 1847, he intermarried with said Malinda, and he insists, that by virtue of said marriage, he became entitled, in right of his wife, to receive from the administrator all the residue of his wife's share in her father's estate, not received and reduced to possession by her first husband. And he admits that he received from the proceeds of real estate sold, the sum of $1,252.43, on the 20th January, 1849. And from the notes, &c, collected, he received in the years 1848 and 1849, the sum of $986.92, which amounts he insists belong exclusively to himself, and that said Lucius J. Boswell is entitled to no part of the same.

The case was submitted upon the bill and answer.

Counsel for defendant requested the Court to charge the jury that complainant was not entitled to recover, for the reason that it appears by the answer which is admitted to be true, that Thomas Howard, the grandfather of complainant, departed this life before the marriage of his mother Malinda with William Boswell, and before the birth of said complain ant, and before the passage of the Act of the General Assembly of 1845.

The Court refused to charge as requested, but charged the jury that under the facts of this case, as appears from defendant\'s answer, the complainant is entitled to recover. To which charge and refusal to charge defendant\'s counsel excepted.

The jury found for complainant one-half the sums received by Roby, with interest thereon from the time received.

Whereupon, counsel for defendant tender their bill of exceptions, and assign as error the charge and refusal to charge above excepted to.

Vason & Davis, for plaintiffs in error.

R. H. Clark, for defendant in error.

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

This cause went to trial on the bill and answer. The answer was the only evidence in support of complainant's cause, and the charge of the Court, which is made the ground of exception, must be construed as it was given, in reference to the admissions of the answer. According to the answer, then, Thomas Howard, the father of Mrs. Roby, died in January, 1845. She first intermarried with William Boswell. This marriage took place after the death of her father, in the latter part of the same year. William Boswell departed this life in the latter part of the year 1846, leaving his widow, the present Mrs. Roby, and one child, the complainant, surviving him. William Boswell received from the administrator of the estate of the deceased father of his wife, her distributive share of the slaves to which she was entitled as one of his heirs at law. He reduced no other part of her share of the estate to his possession.

The administrator died afterwards, and administration de bonis now was granted to Vanover.

In August, 1847, defendant, Roby, intermarried with the widow of Boswell, by which marriage, he insists that hebecame entitled to that part of the, estate of her deceased father which survived to his wife on the death of her first husband.

Under this construction of his marital rights, the administrator paid to him the portion of the proceeds of the real estate of his wife's deceased father to which she was entitled. From the sale of other portions of said intestate's estate, he received, on the same account, $986.92. The defendant's counsel asked the Court to charge the jury, that complainant was not entitled to a decree in this case, because it appears by the answer of the defendant, which is admitted by complainant to be true, that Thomas Howard, the grandfather of the complainant, Lucius Boswell, departed this life before the marriage of his mother Malinda, and before his birth, and before the passage of the Act of the Legislature of 1845. The Court refused to give this charge, and charged the jury that under the facts of the case, as they appear in the answer of the defendants, the complainant was entitled to recover. The exception is to the refusal of the Court to charge as requested, and to the...