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Ilart et al., executors, vs. Johnson et al.

Hart et al., executors, vs. Johnson et al.

Where, by a will made after the passage of the woman's act of 1866, a

testator devised to two of his daughters specific legacies of $500 each, and they subsequently married, and he advanced to their husbands $500 each without, at the time, stating whether it was in lieu of the legacies or not, this was not an ademption of such legacies, though he may have subsequently said that the money was advanced in lieu of the bequest; this latter statement not having been made in the presence of the daughters or sons-in-law. November 21, 1888.

Wills. Ademption. Legacies. Married women. Before Judge LUMPKIN. Glascock superior court. February term, 1888.

Reported in the decision.

REESE & LITTLE, by HARRISON & PEEPLES, for plaintiffs in error.

Thomas E. WATSON, contra.


Samuel Hart made a will by which he devised to two of his daughters $500 each. They subsequently married, and he advanced to their husbands $500 each, without at the time stating whether it was in lieu of the legacy to the daughters or not, although there was evidence to the effect that he subsequently said that the money was advanced to them in lieu of the bequest. The court below held that this was not an ademption of the legacy, and a recovery was had in favor of the daughters, against the executors of the testator, for the amount of the bequest; whereupon the executors excepted.

We agree with the court below that this was not an ademption of the legacy to the daughters. The testa

Hart et al., executors, vs. Johnson ct al.

tor said nothing to his sons-in-law, at the time he gave them this money, as to its being in ademption of the legacies. What he said on this subject, as testified to by the witnesses, was said at a subsequent time, and was not said in the presence of the daughters or sonsin-law. Besides, this will was made subsequent to the “woman's act” of 1866, under which the wife is a feme sole as to her property at the time of her marriage, and as to property given to, inherited or acquired by her afterwards. These daughters married after the making of the will.

We find a case which runs quatuor pedibus with this, Ravenscroft vs. Jones, 32 Beavan's Reports, 669. In that case the testator, by his will, bequeathed to his daughter a legacy of 700 pounds, she being then unmarried. She having afterwards become engaged to be married, her father sent her, by her mother, 100 pounds, which she used in procuring her wedding outfit. After her marriage, the testator sent by his wife to the daughter's husband, 400 pounds, and the husband thanked the father-in-law, who said he hoped it would do him good. Nothing was said by the testator, at the time of these gifts, of any ademption of the legacy. The wife of the testator testified, however, that from what her husband said to her, she had no doubt that he intended these sums as part of the legacy. The Master of the Rolls, Sir John Romilly, held that this was no ademption of the legacy, and that the legacy could not be done away with by what the testator said subsequent to the giving of this money, nothing having been said at the time the gifts were made as to such purpose or intention, and that if he had intended to adeem the legacy, he might have stated so subsequently in the codicil to his will. We think that is the law of this case; and the judgment of the court below is affirmed.

Steadman is. The State of Georgia.


1. Notwithstanding strong and satisfactory evidence of good character,

guilt may be established by a chain of circumstances, the suspicious conduct of the accused, his failure to explain such conduct in a reasonable and probable way, and the identification of him by

means of his cap and coat. 2. No other motive appearing for an attempt at burglary near mid

night, the intent to steal may be inferred, there being valuable effects in the building. December 5, 1888.

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Criminal law. Evidence. Motive. Presumptions. Before Judge WELLBORN. Hall superior court. February term, 1888.

Reported in the decision.

G. K. LOOPER, J. B. Estes and W. L. MARLER, for plaintiff in error.

HOWARD THOMPSON, solicitor-general, and H. H. PERRY, for the State.

BLECKLEY, Chief Justice.

1. Steadman was convicted of a misdemeanor, the same consisting of an attempt to commit burglary by attempting to break and enter a dwelling-house with intent to steal therefrom. That a burglary was attempted by some one on the occasion in question is not uncertain. It was late at night, the moon was shining brightly, and the person was seen standing in the shadow of the building at a window with his hands occupied as if trying to unfasten and open the blinds. On being detected and spoken to, he ran, was shot at several times, made his escape from the premises, and disappeared in full flight. Within about five minutes, Steadman was

Steadman vs. The State of Georgia.

brought to the same house in custody of the police, and was identified, by means of his cap and coat, as the man who had been seen at the window. The police had caught him in a neighboring street, along which he was running soon after the shots were fired. He gave at the time no reasonable or probable explanation of his presence in that locality, or of the rapidity of his locomotion. In his statement at the trial, he said he had been "over near Judge Rice's place,” but mentioned no one who saw him, and did not say why he went there, nor specify the place in any terms more definite. He made no attempt to prove an alibi. Numerous witnesses testified to his good character; indeed, so strong was the evidence on this subject that, had not a jury of the vicinage found him guilty, it would be difficult to believe that he was the culprit. But we think that, in spite of his excellent character, the evidence warranted the verdict.

2. It was contended in the argument that an intent to steal was not sufficiently shown to have been the motive of the attempt to break and enter the house. The evidence put no other motive in sight, and it was in proof that there were valuable effects in the building, and that from the room sought to be entered the whole interior was accessible. The love of gain, the desire to get and have, is so wide a principle of human nature, that other motives being eliminated, that remains as a sort of residuary solvent of conduct. When there is no other reason for breaking into our neighbor's house near the hour of midnight, if we do it at all, we are after his property or his money.

Were it as certain that the jury found the right man as the right motive, not only would all reasonable doubt be excluded, but all doubt whatsoever.

The court did not err in refusing a new trial.
Judgment affirmed.

V 81-47

Gaillard vs. Iludson.


The proviso in section 4038 of the code, to the effect that a defendant

in a possessory warrant case, who can satisfactorily show quiet and peaceable possession of the property for four years next immediately preceding the issuance of the warrant, shall be entitled to have the warrant dismissed, extends to the preceding section, 4035, and the two should be construed together. The defendant in this case did show that he and those under whom he claimed had been in such possession, and that they had bought the property and paid a fair price for it; and their possession could be tacked together so as to show possession adverse to plaintiff for four years. January 16, 1889.

Possessory warrant. Statute of limitations. Adverse possession. Before Judge Boynton. Spalding superior court. February adjourned term, 1888.

Reported in the decision.

STEWART & DANIEL, for plaintiff in error.

E. W. HAMMOND and John I. Hall, contra.


A possessory warrant was sued out by Hudson, to obtain possession of a certain horse found in the possession of Gaillard. The evidence on the trial before the justice of the peace showed that, some ten years preceding the suing out of the possessory warrant, Hudson, who was engaged in the livery-stable business in Spalding county, hired the horse to one Porter, to go to Monticello, in Jasper county, and that the horse had never been returned to him. For the defendant it was shown that Collier, at the time of the suing out of the possessory warrant, was the owner of the horse, that Collier had bought it from one Stockdell, that Stockdell had bought it from Taylor, who kept a livery

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