Wife v. Stokes

• Decision Date: 31 January 1857
• Docket Number: No. 105.,105.
• Citation: 21 Ga. 552
• Parties: Thomas Morris & Wife, plaintiffs in error. vs. William B. Stokes, adm'r, cum testamento, defendant in error.
• Court: Georgia Supreme Court

21 Ga. 552

Thomas Morris & Wife, plaintiffs in error. vs. William B. Stokes, adm'r, cum testamento, defendant in error.

No. 105.

Supreme Court of the State of Georgia

JANUARY TERM, 1857.

Caveat to will, from Muscogee Superior Court. Tried before Judge Worrill, at November Term, 1856.

The questions in this case arose upon the admission to probate in solemn form of law, of a paper purporting to be the last will and testament of Pearce A. Phillips, deceased, who departed this life a minor about eighteen or nineteen years of age.

The following is a copy of the will, viz.:

State of Georgia. In the name of God, amen! I, Pearce A. Phillips, being weak of body and in feeble health but of sound and disposing mind and memory, and being desirous of making a disposition of my property, do make this my last will and testament:

1st. Having resigned my soul to God, I desire to be buried by the side of my beloved mother in the graveyard of the City of Columbus, and that her grave and mine should be suitably enclosed, and a tombstone should be placed over each, and the expense be paid out of the money arising from negro hire.

2d. As I have received money and property from my guardian, John L. Lewis, for which he has no receipt, it is my will and desire that my executors do allow him a credit for ten thousand dollars, without requiring any vouchers from him, and also, that they allow him credit for his account for any money paid out for clothes, board, education and traveling expenses, horses and other things for me, on his making affidavit to the same, and also to give him credit for any receipts he may have of mine, which have not already been exhibited and allowed by the Court, and to allow him commissions on all, as if the same had been passed by the Court of Ordinary. And I do hereby request and appoint my said guardian, John L. Lewis, to settle with Dr. James M.' Lyon for negroes left me by my father, and desire my executors to give the proper receipts to Dr. Lyon according to the settlement so made by the said Lewis.

3. I give and bequeath to my friend, and uncle William L. Wynn, as trustee, the following negroes, Simeon, a man, and Milly and their six children, and Major, Bob, Keziah, John, Ann, Phillis, Catherine, Ritt and Minerva, which are to be taken possession of as soon as convenient, and controlled and managed by him for the use and benefit of my sister Leonora Phoebe Lyon, until she shall marry or come of age, and when either event should happen, she is to have the possession of them if she desires it, and to have and to enjoy the use and hire of them for support, and to spend as she thinks proper for her benefit, and the support and benefit of her children, if she have any, and at her death the said are to be divided among her children equally share and share alike, and should my said sister die without leaving issue living at thetime of her death, my will and desire is that said negroes and their increase be equally divided between my aunt Margaret Phillips and my uncles on my mother\'s side.

4th. My will and desire is, that my friend William L. Wynn, should act as trustee for my sister, and that he should manage the property while in his possession, and appropriate the proceeds according to his best judgment and discretion for the benefit of my sister, and if he refuse, die, or fail to act from any cause, then I desire and appoint my uncle Dr. Jacob A. Lewis, to act in his place under the same trusts and with the same powers and authority, and I do not desire the property given to my sister to be in possession or under the management of any other person, unless both trustees above named die, refuse or fail to act, and in that event I desire the Court of Ordinary of Muscogee county to appoint some person of kin to my said sister on her mother's side to act as trustee.

5th. I give and bequeath to my little cousin, William Smith Lewis, a negro woman named Mary.

6th. I give and bequeath to my little cousin, John L. Lewis, son of John L. Lewis, the lot of land in the "Cherokee purchase" drawn by the orphans of Isaac Phillips, and now belongs to me.

7th. I give and bequeath to my friend Robert A. Smith, my riding horse, saddle and bridle.

8th. I give and bequeath to my uncle Jacob A. Lewis, for his great kindness, care and medical attention to me for years past, my buggy and harness and a negro man named Clark, a boy named Byron, and the proceeds of Riley if sold, and if not sold, Riley himself.

9th. It is my will and desire that my executor do confirm a sale, by making titles to her trustees, I have made to my aunt Martha C. Lewis, of a negro girl about nine or ten years old, named Jane, for the sum of four hundred and twenty-five dollars, paid me by her at the time of signing this will. 1oth. It is my will and desire that the balance of my property, both real and personal, and rights and credits be and remain in the possession of my uncle John L. Lewis, for his own use and benefit until the death of grand-father and grandmother Lewis, and after their death that the same be divided equally between my aunt Margaret Phillips, and my maternal uncles. And lastly, I appoint William L. Wynn, and Noland R. Lewis, executors of this my last will and testament. In testimony whereof, I have hereto set my hand and seal, this 18th day of January, 1844.

In the presence of

Josephus Echols,

Ansel L. Watkins,

Seaborn Jones.

PEARCE A. PHILLIPS, [L. S.]

To the admission of this paper to probate and record, Thomas Morris, and Leonora P. Morris his wife, who was the maternal sister of deceased, and his sole heir at law, filed their caveat on the following grounds, to-wit:

1st. Because said Pearce A. Phillips never published and declared said paper as his last will and testament.

2d. Because, if deceased ever did publish and declare the same as his will, he did not do the same voluntarily, but it was done under the undue and improper influence of John L. Lewis.

3d. Because, if deceased ever did declare said paper to be his last will, the same was procured to be clone by the fraud, and undue influence of John L. Lewis and P. A. Lewis, and was not his voluntary act and deed.

4th. Because said Pearce A., at the time of the execution of said instrument, was of unsound mind and memory, and incapable of making a will disposing of his property.

5th. Because said Phillips, at the time of making said will was a minor.

6th. Said pretended will is void and fraudulent, because more than half of his estate was bequeathed to John L. Lewis, his guardian, and the executors, therein named, directed not to require said guardian to account for the same.

7th. Because said John L. Lewis, the guardian of said Philips procured said will to be made, in order to protect himself and his securities on his guardian bond, from their liability, for the estate of said Philips in his hands.

8th. Because said John L. Lewis fraudulently and deceitfully persuaded said Pearce A. Philips to make said will, under the impression and belief made upon his mind, that his estate would be inherited by his relatives on his father's side, unless said will was made; when in fact, it was the wish of said Pearce A. to.give a large portion of his estate, if not all, to his sister, Leonora P., and at the time believed that the larger portion thereof, was secured to his said sister, when, in fact, it had, by the fraudulent and deceitful representations and practices of said John L. been given to himself.

There was an appeal, by consent, from the Ordinary, to the Superior Court, of Muscogee county, and upon the trial the following testimony was introduced:

For Propounders.

Col. Seaborn Jones, sworn, says that Col. John L. Lewis called on him, and stated that Pearce A. Philips wished him to write a will for him. That, a short time thereafter, said Philips called on him, or he called on Philips, and Philips gave him instructions to write a will. That, under these instructions, he wrote the will in question. That, in company with Josephus Echols, he took the will and went to the house of said John L. Lewis, where Philips was living, who was then in bad health; that, there said Philips signed said will, in presence of witness, and Josephus Echols, and Ansel L. Watkins, who subscribed in the presence of testator and of each other. Testator was of sound mind. John L. Lewis was a man of good sense, and I think able to exercise influence over the people in the county, because he was elected tothe Legislature several times; was kind and obliging to every one.

Josephus Echols, sworn, says that he went with Col. Jones to witness the will. Testator was in feeble health; about 18 or 19 years of age. Some parts of the will were read to him; he seemed to understand it; was of sound mind; and signed the will in the presence of the subscribing witnesses, and they in his presence, and in the presence of each other. Lewis was a man of shrewdness and popularity, and exercised influence over those around him.

Ansel L. Watkins, examined by commission, deposed that he saw testator sign the will, and that he signed it in presence of testator and the other witnesses, who likewise subscribed in presence of testator and witness. Testator was of sound mind and memory. The will was made in the house of Lewis, and witness was called on by Lewis to witness the will. He lived a near neighbor to Lewis. Testator lived about a week after making the will; he had been sick some time.

Propounders then read to the jury an order from the minutes of the March Term, 1844, of the Court of Ordinary of Muscogee county, admitting said will to probate, in common form, and ordering it to be recorded.

William Wynn, examined by commission proved, that he never heard testator speak of the disposition of his property after making his will. Testator came to him before making it, and asked him to be executor and trustee for his sister— now Mrs. Morris—and stated he should leave her some 16 or 17 negroes; that that was as much as he...