Smithwick v. Evans

McDonald, J. By the Court. delivering the opinion. [1.] The caveators introduced Frances Andrews as a witness, whose testimony was given. To impeach her credit, the propounders introduced a witness who testified that she was, by reputation, a notorious prostitute. The testimony of the latter witness was objected to, but the objection was over [463] ruled. This decision of the Court is excepted to, and that exception constitutes a ground of error. This Court has already decided that the mode of impeaching a witness for defect of character is to prove by witnesses who know his. or her general character, and that from such knowledge they would notbelievehim or her on oath. Stokes vs. The State, 18 Ga. Rep. 37. It does not follow, necessarily, that because a woman is a prostitute, she is incapable of telling the truth. It is a great blemish in character, but there is no reason wherefore she should be placed in a worse condition than other persons of depraved character. It is possible, that while she is unquestionably immoral in a degree to exclude her from respectable society, she may have established a good character for truthfulness. If so, and uprigh t witnesses will not impeach her character in that respect, there is no reason why her testimony should not be received. [2.] The exception to the decision of the Court sustaining an objection to the admissibility of the testimony of E. H. Beall, Esq., constitutes the next ground of error. Mr. Beall is a subscribing witness to the will, and counsel for the propounder. He had been examined by the propounder of the will. The question was as to the amount of his fee, and the terms on which it was to be paid. It was not a matter of confidential communication from his client that he was interrogated to ; nor was it as to a matter or thing which he acquired from his client, or during the existence or by reason of the relationship of client and attorney. It was in regard to a matter which must have been necessarily agreed upon before the relation of client and attorney could exist. It was, prima facie, relevant to the matter in issue. He ought to have been required to answer the question. [3.] After the evidence was closed, the counsel for the caveators requested the Court to charge .the jury, that the will, so far as it provided for the emancipation of certain slaves therein mentioned, was repugnant to the Acts of 1801 and 1S18, prescribing the mode of manumitting slaves in this [464] State. The Court refused to give said request in charge to the jury, but on the contrary, charged the jury in substance that the said will was not repugnant to said Acts, and was not void. This charge and refusal to charge are excepted to. The testator directs and desires his negro woman Jane and her four children to be placed under the charge of the American Colonization Society, to be conveyed by the society, and under its charge, to Liberia, in Africa, and there to be set free according to the laws of that country. The testator further directs, .that if his wishes as above expressed, cannot be carried out either by his executors or the society, that his executors shall carry the said negroes to some State in the United States, where, according to the laws therein, they can be set free. The expenses of carrying the said negroes to Liberia or to a free State, were to be first paid out of the proceeds of the sale of his property, as directed in the second item of his will If the Colonization Society refuse, or do not provide the means or expense of their transportation to Liberia, his executors are to pay them. He does not wish Jane and her children to be hired out, provided there is a sufficiency of money arising from the sale of Henry and his other property, to pay their expenses to Liberia or a free State. He desires his executors to have them carried to Liberia or a free State, as soon as it can be done after his death. In the mean time, between his death and their departure, his executors are to have the said negroes in trust for the purposes aforesaid. By the second item in the will, he directs a negro man Henry, and all other property he might leave at the time of his death, to be converted into money, and his funeral expenses and debts to be paid. If the sale of the other property should not raise a sum sufficient to defray all the expenses that might accrue in the settlement of his estate, he authorizes his executors to hire [465] out. his negroes until there may he a sufficient fund to defray all expenses of carrying out the provisions and intentions of the will. This Court has decided that the Acts of 1801 and 1818 do not prohibit extra-territorial manumission, provided it is not the testator’s intention that the negroes are, during an intervening period between the death of the testator and their removal from the State, to be free, or enjoy their freedom within the State. Whether this will violates the said Acts, ■according to this interpretation of them, depends in some measure, we think, on evidence outside of the will. The will is skillfully drawn to avoid the operation of the Acts of 1801 and 1818 as construed by this Court. But, nevertheless, if it be, in fact, violative of those Acts, it cannot stand. If it be not apparent on the face of the will, that it is not in violation of the Acts of 1801 and ISIS, the charge, that it is not repugnant to those Acts, is erroneous. It is not certain, from the terms of the will, that the testator did not intend the negroes, Jane and her children, to remain in Georgia, free, an indefinite length time. By the second item in his will, he directs that Henry and all other property which he had at the time of his death be sold. If Jane and her children were property, and left by him as property at the time of his death, they were, by the directions of the will, to be sold. If they were not left as property, they could not be sold. They must have passed to the executor, on the death of the testator, either as property, or in trust, as free persons of color. The bequest to them of extra-territorial freedom was inconsistent with their .•sale under the general direction in his will for the sale of all •the testator’s property, and being a later clause in the will, •'it must prevail, unless it be illegal and void according to the ■construction placed by this Court on the statutes of 1801 and 1818. In determining this question, the will itself must be [466] looked to, as well as facts extrinsic to the will. If it appear by evidence that the provisions of the will cannot he executed, without the enjoyment of freedom by the slaves emancipated, within this State, contrary to law, the bequest of freedom is void. It must appear that this state of things is not attributable to the misconduct of the executor, for the negroes must not be subjected to the loss of the freedom intended for them by the testator, by his mismanagement. But if it be impossible to execute the provisions of the will, except by violating the law, it cannot be done, and every thing must yield to the public policy on1 which the law is founded. I have perhaps said enough on this subject, as the case goes back for a new trial on other grounds. Judgment reversed,.