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Napier vs. Trimmier.

contained in the record, was error.

If the settlement was made on the basis of the executors' returns, as the same existed when it was made and the assets were turned over to the legatees, then the settlement was binding on all the parties to it. The legatees cannot be held to be bound by the settlement on the basis of the returns then present, and not the executors, the more especially as it was the fault and neglect of the latter if their returns were not complete. If the executors can go behind the settlement and open it for the purpose of correcting their own mistakes, then the legatees may go behind it and attack the returns of the executors, as they proposed to do. If the executors desire to hold the legatees bound by the settlement on the basis of their returns as the same existed at the time the settlement was made, then they can do so by dismissing their proceeding to have their returns corrected, but if the settlement is to be opened for that purpose, then it will be open for the legatees to contest their returns, or any part thereof, as they proposed to do. All the parties should be bound by the settlement on the basis of the returns as the same existed at the time the settlement was made, or none of them should be bound by it.

Let the judgment of the court below be reversed.

THOMAS C. NAPIER, plaintiff in error, vs. OBEDIAH W.

TRIMMIER, administrator, defendant in error.

1. If, for a valuable consideration paid down, a party contracted to leave to

another a money legacy by will, and died without performing the contract, some good legal reason should be shown by his representative why per

formance ceased to be obligatory—such as rescission, novation, release, etc. 2. Though newly discovered evidence be cumulative, and therefore not, of

itself, cause for granting a new trial, yet it may be regarded somewhat in passing upon the whole case, another ground of the motion being that the verdict is contrary to evidence.

Contracts. Wills. New trial. Before Judge Hall. Catoosa Superior Court. February Adjourned Term, 1875.

Napier vs. Trimmier.

Reported in the opinion.

J. E. SHUMATE; J. A. W. JOHNSON; W. K. MOORE; W. H. PAYNE, by brief, for plaintiff in error.

D. A. Walker, by brief; A. T. HACKETT, for defendant.

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1. A father, wanting to reclaim a dissipated son, induced him, in 1850, to convey to him his property, consisting of lands and slaves. He promised to pay the son's debts, and besides that, engaged to bequeath to him by will a certain sum of money, in addition to an equal share with that of other children, in his estate. He made his will accordingly, and paid a part or all of the debts in pursuance of his undertaking. Afterwards, he withdrew this will from the custody in which he had placed it, and in 1860, made another, in which the only provision for this son was an equal share; and that was not given directly to the son, but to a trustee for the benefit of him and his family. The father died in 1870, and this latter will was admitted to probate in 1871. It contained a clause revoking all former wills. In 1875 the son brought his action against the administrator with the will annexed, to recover the amount which the father had promised to leave him in excess of an equal share. The administrator pleaded the general issue, want of assets, and the statute of limitations. He did not plead payment, performance, rescission or release. On the trial, the jury found in favor of the defendant; and the court refused a new trial.

The evidence pro and con need not be gone through for the purposes of this opinion. We have considered it all carefully, and the effect of it, except in so far as it tends to show defensive matters, is embodied in the foregoing statement. The conclusion at which we have arrived is, that the plantiff established the contract substantially as alleged in the declaration, (varying only in amount,) and showed full performance of it on bis part, and partial performance on the part of his father.

Burnett vs. Vandiver.

The breach in respect to the agreed legacy, (if the contract was in fact made, and if it still subsisted at the death of the old gentleman,) is apparent by reference to the will which was probated. Looking at all the evidence, it seems to us clear that the contract was made. Was it ever rescinded or modified? There is no direct evidence that it ever was, and circumstances warranting the inferrence that it was, have not been brought before us in the record. What may have been present to the jury which is not present to us we cannot know. We have no right to conjecture that they had the aid of facts which have not come hither for review.

2. Connecting both grounds of the motion for a new trial, we have no difficulty in saying that the motion should prevail. The newly discovered evidence may be cumulative, and therefore insufficient of itself, but some regard may be paid to it in passing on the whole case.

We are not to be understood as intimating what the verdict should be on a future trial, but only as declaring our conviction, baseil on the record, that another trial should take place.

Judgment reversed.

HENRY C. BURNETT, plaintiff in error, vs. J. J. VANDIVER,

defendant in error.

A bill in equity which alleges that the defendant became the purchaser of

property belonging to complainant, sold at sheriff's sale, at a price far below its real value, under an agreement that he was to hold the same until reimbursed; that he has been repaid the amount advanced, but nevertheless is in possession of the property claiming it as his own, and praying relief, should not be dismissed on demurrer.

Equity. Contracts. Before Judge UNDERWOOD. Floyd Superior Court. July Term, 1875.

Reported in the decision.

R. T. Fouche; FORSYTH & REESE, for plaintiff in error.

Burnett vs. Vandiver.

C. ROWELL, for defendant,

WARNER, Chief Justice.

This was a bill filed by the complainant against the defendant praying for a discovery, account and relief, etc. The defendant demurred to the complainant's bill for want of equity. The court sustained the demurrer and dismissed the bill, whereupon the complainant excepted.

The grounds of the complainant's equity alleged in his bill, are, substantially, that he was the owner of a portable steam engine with all necessary apparatus for running the same, together with one planing and sash machine, rip-saw, etc., of the value of $2,000 00; that said property was levied on to satisfy an attachment judgment against complainant, amounting to the sum of $116 00; that complainant was unable to raise the money to prevent the sale of said property, and applied to the defendant to pay said debt for him, when it was agreed between them that defendant should attend the sale of said property and bid off the same for complainant by bidding the amount of said debt therefor, and that complainant was to work and run said engine and machinery, as agent for defendant, until said debt was discharged or the defendant should be reimbursed the money advanced by him in bidding off the property; that the defendant attended the sale and bid off the property for the sum of $116 00, and now claims it as his own property, although the complainant has operated said engine and machinery under said agreement with defendant, and that it has turned out work, nearly of the value of $600 00, which is more than enough to discharge the amount which defendant bid for the property. In short, the defendant, under the agreement made with the complainant, bid off property worth $2,000 00 for $116 00, and the complainant has run it with the defendant until it has turned out work enough to more than reimburse the defendant for the money which he bid for the property under the agreement, and now the defendant claims to be the owner of the property under

Dupont vs. Mayo et al.

his bid for it at the sale under the circumstances herein before stated. In our judgment, in view of the allegations contained in the complainant's bill, the defendant should have been required to answer them as prayed for, and that it was error in dismissing it on demurrer.

Let the judgment of the court below be reversed.

CARRIE M. DUPONT, plaintiff in error. v8. JAMES W. MAYO

et al., defendants in error.

(JACKSON, Judge, having been of counsel, did not preside in this case.)

1. The surety on a guardian's bond can obtain no discharge under section

1817 of the Code, without a petition, as required by section 4114, and having the ordinary to cite the guardian to appear and show cause against the application. The surety must sue in this manner for his discharge, and

process must issue in terms of the law, that is, the guardian must be cited. 2. An order of discharge, based on no such proceeding, but simply accepting

a new bond already executed by the guardian, with satisfactory security, in

place of the old, and declaring a former surety discharged, is void. 3. Where the order of discharge does not recite that the surety has petitioned,

or that the guardian has been cited, and these facts do not otherwise appear, but the order, on its face, rather indicates some informal proceeding by consent, there is no presumption that more was done than is set forth in

the record, 4. Tax returns are required by law to be made by the guardian in the course

of his duty, and are therefore evidence of assets to charge him and his

sureties in an action against them upon the bond. 5. When the guardian is chargeable with more assets than the amount of the

bond sued upon, the credits to which he is entitled should be applied to the eccess till that is exhausted.

Guardian and ward. Bond. Presumption. Evidence. Before Judge KIDDOO. Dougherty Superior Court. October Term, 1875.

Reported in the opinion.

D. H. POPE; VASON & Davis, for plaintiff in error.

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