Wright v. Hicks

Decision Date28 February 1854
Docket NumberNo. 17.,17.
Citation15 Ga. 160
PartiesElias S. Wright, Administrator of Jemima Culpepper, deceased, plaintiff in error. v. Lewis F. Hicks, Administrator of David Culpepper, deceased, and Administrator, de bonis non com testamento annexo of David Culpepper, deceased, defendant in error.
CourtGeorgia Supreme Court

In Equity, in Crawford Superior Court. Tried before Judge Powers, September Term, 1853.

This bill was brought by Wright, as the administrator of Jemima Culpepper, against Hicks, as general administrator, and as administrator de bonis non, cum testamento annexo, of Daniel Culpepper, deceased.

The bill alleged that in February, 1849, Daniel Culpepper died, leaving a widow, Jemima Culpepper, surviving, and an estate worth $5000; and also left a will, as follows:

"Item 1st. I give and bequeath unto my beloved wife, Jemima Culpepper, all my estate, both real and personal, during her natural life, after paying all my just debts, with the following reservations, to wit:

Item 2d. I give and bequeath unto Berry Wesley Culpepper, (so called,) five dollars out of any money belonging to my estate. The said Berry Wesley Culpepper, being the son of Elmira Culpepper, the wife of my only son, Isaiah Culpepper, deceased, and born in wedlock.

Item 3d. Reserved $200 after the death of Mrs. Culpepper, to wall in the graves, erect head-stones, &c. of the family.

Item 4th. Appointed Mm. Culpepper executrix.

Mrs. Culpepper qualified under the will, and took the estate into possession. In 1849, she died, and Hicks took out letters of administration, generally, and letters of administration with the will annexed, on the estate of Daniel Culpepper; and the complainant applied for and obtained letters of administration, on the estate of Jemima Culpepper. Hicks took the estate into possession.

The bill further alleges, that Isaiah Culpepper, the son of Daniel and Jemima Curpepper, in 1836, intermarried with one Elmira Sullivan, and the said Elmira, in about three months after said marriage, was delivered of a son; that on the next day after the marriage, the said Isaiah having discovered the imposition practised upon him—that is, the pregnancy of the said Elmira—returned her to her former home, and repudiated the said marriage, as far as he could do, protesting all the time against any knowledge or even suspicion, of a want of chastity in the said Elmira.

The bill further alleged that Isaiah Culpepper died before his father, Daniel Culpepper, and that Jemima Culpepper departed this life in 1847; that the said Berry Culpepper is now living; that Daniel Culpepper and Jemima Culpepper, both died leaving no child or children, nor representative of child or children.

The bill prayed that Hicks, the administrator of Daniel Culpepper, might be decreed to deliver to the complainant, as the administrator of Jemima Culpepper, the entire amount of said property, for the reason that the same is the estate of the said Jemima, and not of the said Daniel Culpepper. Also, that the said Berry Wesley Culpepper might be decreed to be an illegitimate, and not entitled to any portion of said estate.

To this bill, a general demurrer was filed, which was sustained by Judge Powers. To this decision exceptions were taken, and the case, by writ of error, carried to the Supreme Court, at Decatur, August Term, 1852.

The Supreme Court reversed the judgment of the Court bo-low, re-instated the case, with leave to complainant's solicitors to amend their bill.

The amended bill "charged, that the said Berry Wesley Culpepper was not the offspring of Isaiah Culpepper, but a bastard; that no sexual intercourse had been had by and between the said Isaiah and Elmira, before their marriage". The bill further charged, that Hicks had become the guardian of Berry Wesley Culpepper, and prayed that he might be made a party defendant to the bill.

To this bill, the defendant filed his answer, which it is unnecessary to set forth here.

On the trial of the cause, at September Term, 1853, counsel for complainant offered "to prove to whom, by the general reputation of the neighborhood, and in the family of Culpepper and his wife, the paternity of Berry Wesley was assigned".

The Court rejected the testimony, and counsel for complain-ant excepted. Complainant then introduced John Perry, who swore, "that in a day or two after the marriage, Culpepper carried his wife back to her step-father's Abel Daniel. There was a likeness between Berry Wesley and Daniel's children— Daniel left the country soon after Culpepper's marriage.— There was a disturbance at that time in the family, on account of Mrs. Culpepper's pregnancy. Culpepper told witness, a week or two after the marriage, he had returned his wife to her step-father, because he had been deceived, and found her pregnant by the said Abel Daniel; Culpepper visited his wife for twelve months before the marriage; had seen them in a room upon several occasions, when no one else was present".

Watson Sawyer sworn—"A day or two after the marriage, Culpepper told witness, that he had been entrapped in getting a wife—thought he was marrying a virgin, but upon going to bed with her, she appeared skittish, and would allow no familiarities; after she fell asleep, by passing his hand over her, he discovered that she was pregnant—when he awoke her and upbraided her for the cheat she had put upon him, and asked who the person was that had debauched her, when she informed him that it was Abel Daniel, and he had carried her back to her step-father's".

Counsel for complainant offered divers other witnesses, whose testimony was much the same.

The defendant then read in evidence the testimony of Abel Daniel, taken by interrogatories, sued out by the complainant, (the complainant having declined to read them, and defendant adopting them as his own,) in which he denied having had intercourse with Elmira Sullivan. In them the following interrogatory was propounded: "Was it after or before the marriage, that you pointed out to Thomas Stripling and Turner Cates, the place where you had had intercourse with her, and thought you had got her with child"? To which he answered: "I might have said such things, but have never pointed out the place to them".

Thedoric Mentfort sworn. "I was present at the division of Isaiah Culpepper's estate, which was equally divided be-tween Berry Wesley Culpepper and Lewis F. Hicks, who had married his mother; that both Hicks and his wife were anxious such should be the case"; to which testimony, counsel for complainant objected. The Court over-ruled the objection, and complainant excepted.

The defendant having closed, complainant offered to prove by Turner Cates, "that Abel Daniel had pointed out to him the place where he had got Elmira Sullivan with child, and to show, by him, what place it was, " which testimony was rejected by the Court, and counsel for complainant excepted.

The case being closed, Washington Poe, Esq. of counsel for complainant, addressed the Jury, when the Court adjourned until eight o'clock next morning.

Upon the assembling of the Court next morning, the Judge announced "that he had examined the papers during the night; that the amendment to the bill was not such as the Supreme Court had directed; and that, under the state of the pleadings and evidence, he should instruct the Jury that there was no case before them on the pleadings and evidence, on which they could find Berry Wesley Culpepper illegitimate; that counsel might address the Jury, if they saw proper, but that the Court, unless his mind was changed, would charge the Jury as intimated".

The Court then directed the Jury to sign a decree, vesting one-half of the property in complainant, as administrator of Jemima Culpepper. At this point, one of the Jury inquired "if they were not at liberty to retire and consider of the evidence"? The Court replied, that "he was responsible for the law, and that Berry Wesley, under the state of the plead-ings and evidence, could not be decreed an illegitimate, and the Jury must obey instructions".

To which rulings of the Court, counsel for complainant excepted, and upon these several exceptions error has been assigned.

W. Poe, S. & R. P. Hall, and Green & Culverhouse, for plaintiff in error.

G. R. Hunter and Mounger, for defendant in error.

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

The first assignment is, that the Court erred in repelling the testimony offered by complainant, to prove to whom, by the general reputation of the neighborhood, and in the family of Culpepper, and his wife, the paternity of the boy, Berry Wesley Culpepper, was ascribed.

The two propositions embraced in this assignment should be separated. They stand on different grounds.

First, as to the general reputation in the vicinage. Questions involving public rights, such as prescriptions, commons, &c. may be proven by general reputation; but not so, where private rights are put in issue. Notwithstanding this general rule, there is not wanting respectable authority in favor of the admissibility of this species of evidence, in questions of illegitimacy. Without citing other cases, I need only to refer to the opinion of Chief Justice Marshall, in support of this doctrine, in Stegall vs. Stegall, (2 Brockenbrough's R. 256,) inwhich he states, that this species of proof is not to be entirely overlooked or disregarded. He intimates, however, that it is not in every case that resort should be had to it. Upon the whole, we are inclined to think that, in the present case, the Court was right, perhaps, in rejecting so much of Mr. Perry\'s testimony as related to general rumor, respecting the parentage of Berry Wesley Culpepper.

But, does the reputation in the families of this boy's father and mother, as to his status or condition, stand upon the same footing? We think not, and upon the most obvious principle. This kind of proof is sufficient as to pedigree, and the title to property consequent thereon. The relatives are properly...

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