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Combs vs. The State of Georgia.
alone belongs the right of saying whether a statute is in force or not.” Slymer vs. The State, 62 Md. 237. The law itself having provided that the result of the election should be placed upon the minutes of the superior court, and that that entry should be competent evidence to show when the act went into effect, and the judge below having these minutes before him, there was Do error in his reading from said minutes and instructing the jury, as matter of law, as to when the act went into effect. It is the duty of the judge to know the law, especially to know the law of the counties in his own circuit. If he should be ignorant of the local law enacted by the legislature for any county in his circuit, or any county where he may preside, it would be his duty to inform himself of what the law is. If the act of the legislature does not inform him as to when it went into effect, then he can look to the means provided by this. act to inform himself. If the act provides that the clerk shall announce the result of the election and place it on the minutes of the court, he may look to that. If the act provides, as many of them do, that the return should be made to the ordinary of the county and he should issue his proclamation declariug the result, then he may look to the proclamation, or have it introduced, if necessary, in evidence before him, but not before the jury. The proclamation of the clerk or ordinary is conclusive that the law has been accepted by the people, and has become eftectual as a law. It being conclusive for this purpose, there would be no use or propriety in submitting the matter to a jury, because the defendant would not be allowed to controvert it, and it would be useless to submit any evidence in a criminal case to the jury which the defendant would not be allowed to controvert.
We are aware that the courts in different States have
Hart et al., executors, vs. Hart.
made conflicting decisions upon this point, but we think that the better line of decisions take the same view that we do in this case. Slymer vs. The State, supra; Mackin vs. State, 62 Md. 244; Jones vs. State, 67 Md. 256 ; Crouse vs. State, 57 Md. 327; Wilson vs. State, 35 Ark. 414; Funk vs. State, 27 Minn. 318.
Contra: Hailes vs. State, 9 Texas Court of Appeals, 170; Hays vs. State, 78 Mo. 600; Grider vs. Tally, 77 Ala. 422; Bryant 14. State, 65 Miss. 435, 4 South. Rep. 243.
HART et al., executors, vs. HART.
A testator made the following bequest : “I give and bequeath unto
my beloved wife, Diza, the sum of $600.00, to be paid to her immediately after my demise by my executors to be hereinafter mentioned. I also give and bequeath unto my said wife, Diza, the use and control of the two east rooms of my house in which I now live, together with the three beds, tables and other furniture belonging or usually staying in said rooms, during her natural. life; also the privilege of the yard and garden. Also I give and bequeath to her my buggy and mare, and should the mare die, her place to be supplied by my executors. It is my will, and I further direct, that my two sons, William and Absalom Hart, in and for consideration of what I have done for them, do give my said wife, Diza, a decent support during her natural life, to keep the buggy devised above in repair, and supply a horse or mare for her to drive should the one devised above fail, and allow her to remain in my house as above devised, in peace and quiet. Should they fail or refuse to do so, I direct that the ordinary of said county, upon sufficient evidence of the fact, issue execution against my said two sons and sell enough of their property to give her the necessary support.” The testator having died, his will was probated, and the two sons duly qualified as his executors. His widow brought suit against them, alleging that they had failed, in various ways, to
comply with the directions of the testator in the item mentioned. Held, 1. There was sufficient evidence to sustain a verdict for the
widow upon the question as to whether the executors had allowed her to remain in the house in peace and quiet.
Hart et al., executors, vs. Iart.
2. The widow was entitled to the use and occupation of the two
rooms mentioned, but was not compelled to live there. The executors are charged with a decent support for her in accordance with her position in society at the time of the death of the testator. regardless of where she may reside; or at least she would have been entitled to money enough to have rented two rooms in some other locality, and to purchase suitable clothing and provisions for
one in her station in life. (a) She was also entitled to have paid her medical bills and bills for
care and attention during her sickness, whether she esided in the rooms set apart in the will or not, and to a horse and buggy and provender for the horse, and if the horse left her in the will died, or was sold under execution against her for her medical bills, she
was entitled to another. 3. The will does not place the obligation to support this widow upon
the devise to the two sons of the lands which the testator bequeathed to them. It expressly states that this obligation is imposed in consideration of what the testator had done for them. Though, subsequently to making the will, the testator sold the land to them, he did not thereby revoke the bequest to his wife. As they accepted this trust and received other bequests besides the land, they will not be allowed to say that they are not liable to
carry out that part of the will which gives a support to the widow. 4. It was not error to exclude from the jury a contract made between
the testator and the sons after the execution of the will, in which it is set out that they had bought the land devised to them and obligated themselves to allow testator and his wife to occupy the two rooms mentioned as long as they should live, and to furnish them with board and reasonable clothing and pay their doctors' bills. The selling of the land by testator to his sons, and the making of this contract, did not revoke the bequest to the wife. She had rights under both will and contract, but elected to claim under the will.
December 3, 1888.
Wills. Legacies. Evidence. Before Judge LUMP
Glascock superior court. February term, 1888.
Reported in the decision.
JAMES WHITEHEAD, by J. H. LUMPKIN, for plaintiffs in error.
Hart et al., executors, vs. Hart.
W. D. Tutt, by brief, contra.
Mrs. Eliza Hart sued William and Absalom Hart in Glascock superior court, alleging in her declaration that they were indebted to her $1,000.00 and interest. She states therein that she is the widow of Samuel Hart, who died in 1879. By the second item of his will, he made the following bequests :
“I give and bequeath unto my beloved wife, Diza, the sum of $600.00, to be paid to her immediately after my demise by my executors to be hereinafter mentioned. I also give and bequeath unto my said wife, Diza, the use and control of the two east rooms of my house in which I now live, together with the three beds, tables and other furniture belonging or usually staying in said rooms, during her natural life; also the privilege of the yard and garden. Also I give and bequeath to her my buggy and mare, and should the mare die, her place to be supplied by my executors. It is my will, and I further direct, that my two sons, William and Absalom Hart, in and for consideration of what I have done for them, do give my said wife, Diza, a decent support during her natural life, to keep the buggy devised above in repair, and supply a horse or mare for her to drive should the one devised above fail, and allow her to remain in my house as above devised, in peace and quiet. Should they fail or refuse to do so, I direct that the ordinary of said county, upon sufficient evidence of the fact, issue execution against my said two sons, and sell enough of their property to give her the necessary support.”
She alleges that said will was duly probated, and that the defendants qualified as executors and entered upon their duties; that she remained some time in the house, as directed by the will, until her situation became so unpleasant on account of the treatment she received, that she was forced to remove; that the defendants failed to furnish her a decent support, and refused to provide her medical attention during her sickness, and allowed the horse and buggy to be sold for a medical bill, and had failed to provide her with another horse and buggy ; and that on account of their unkind treatment to her,
Hart et al., executors, vs. Hart.
she was forced to leave the house in April, 1881, and go to live with her two daughters. She alleged that her support, from the time of her leaving the defendants, up to the time she brought her suit, amounted to $1,000, which defendants were bound under the will to pay her. The defendants filed two pleas. They pleaded (1) the general issue, and (2) that the second item of the will, as to providing her with support, etc., was inoperative, because the same was a charge placed upon them in consideration of certain lands devised to them by the testator, which lands, after the execution of the will, were conveyed to them by the testator by deed, and therefore did not pass under the will; that if they were liable for such support, etc., they were so only so long as the plaintiff' remained in the house and continued to occupy the two east rooms, but that she voluntarily and without sufficient cause left said house about a year after testator died, and has not since returned, whereby she forfeited her claim upon them so long as she continues to remain away.
On the trial of the case, the jury returned a verdict for the plaintiff. The defendants made a motion for a new trial, upon various grounds set out therein, which was overruled by the court, and they excepted.
1. One of the grounds of the motion is, that the verdict was contrary to law and to the evidence. There was no error in overruling the motion on this ground. The theory of the defendants was, that if the widow had left the house provided for her in the will without sufficient cause, she was not entitled to recover anything; and they alleged that they had supported her as long as she remained with them, and they were still willing to do so if she should return. The theory of the plaintiff was that, under the will, the defendants were to allow her to live there “in peace and quiet.” The evidence