Seabrook v. Brady

Warner, Chief Justice. This was a bill filed by the complainant as administrator de bonis non of Burton T. Dennard, deceased, against the defendants, to set aside a sheriff’s sale of certain described lands, on the alleged ground of fraud, and to recover the possession thereof, for the purpose of administering the same for the benefit of the creditors of his intestate. On the trial of the case, the jury, under the charge of the Court, found a verdict for the defendants. A motion was made for a new trial, on the several grounds set forth therein, which was granted by the Court, and the defendants excepted. It appears, from the evidence in the record, that in the year 1851, William Dennard; the father of the complainant’s intestate, died, leaving a widow, Irene Dennard, and two children, Burton T., and Julia, the latter having intermarried with one William M. Brady. William Dennard, at the time of his death, left a [653] will by which he devised one-half of the land in controversy to his wife, Irene, together with other property; and the other half of the land, together with other property, to his son, Burton, giving to his daughter, Julia, only $>50 00 as her full share of his estate. Julia and her husband, Brady, entered a caveat to the will, and during the pendency thereof in Court, a compromise was made between Brady and wife, and the other parties claiming under the will, whereby it was stipulated, that the caveat should be withdrawn, and in consideration thereof, that Irene, the widow of the testator, should receive the property devised and bequeathed to her by the will, and Burton T. agreed that out of the residue of the estate to which he was entitled under the will, that he would convey to William M. Brady, in trust for his wife, Julia, an amount equal to one-third of the whole estate of which William Dennard died seized and possessed, so soon as he should arrive at twenty-one years of age, and executed a bond, with security, in the sum of $15,000 00, for the faithful performance of the agreement. This conveyance, however, was never executed by Burton T., but after he became of age he and Brady purchased the widow’s one half interest in the land ,and went into the possession of it, and remained there together until the death of Burton T., in 1853, when William M. Brady took out letters of administration on his estate, and held the possession of the property of Burton T., as his administrator, including three-fourths of the land in controversy, when he sold the same in October, 1856, to the defendant, Dawson. William M. Brady died in January, 1857. The deed from Brady to Dawson is dated 10th October, 1856, and was executed in Dougherty county. A relinquishment of Mrs. Julia Brady’s interest in the land conveyed to Dawson by her husband, whether as dower or otherwise, purports to have been executed by her on the 30th of December, 1856, in the county of Sumter, and witnessed by Ronaldson, clerk of the Superior Court. Since the death of Brady, his widow, Julia, has intermarried with Wilcher, and was examined as a witness on the trial, and stated that [654] she did not know the contents of the paper signed by her on the 30th of December, 1856, and was coerced to sign it by fear of her husband, William M. Brady. (Ine fraud alleged in the sheriff’s sale is, that the defendant, by his attorneys, made representations at the sale to prevent bidders, as charged and set forth in the bill and substantially admitted in the answer, whereby the defendant purchased the land for $20 00. Some of the questions involved in this case have been before this Court on two former occasions, between different parties, and have been adjudicated: See Johnson et al. vs. Brady, administrator, 24 Georgia Reports, 131; Crawford et al. vs. Brady, administrator de bonis non, 35 Georgia Reports, 184. This Court has decided that Mrs. Brady, now Mrs. Wilcher, (the claim of Jerry Cowles being out of the way,) has the highest claim, under the agreement of compromise, to be paid out of the property of her father’s estate, which came into the hands of her deceased brother. In other words, that her claim to be paid the one-third of the whole estate of her deceased father, constituted a charge upon that estate in the hands of her deceased brother, of the highest character, and that it survived to her on the death of her husband. The property of William Dennard, which went into the hands of Burton T., ■ under his will, is bound, under the decision of this Court, for the payment of that debt or charge, and the land in controversy being a part of that property, the heirs of Burton T. took it, subject to that debt or chai’ge which the judgment of this Court declared was fastened upon it, and a purchaser of that property from the heirs of Burton T., u/nadministered, stand in no better condition than his heirs would have done. It is true, the title to land descends to and vests in the heirs of the decedent, subject to be divested for the payment of the debts of the deceased, by a due course of administration, according to law. Three-fourths of the land which the defendant purchased from Brady was the property of Burton T. Dennard, at the time of his death, and never has been administered, so far as the record shows, but, on the contrary, the defendant admits, in his answer, “ that he believes it to be true [655] that said William M. Brady, as administrator, did not administer upon said plantation, and the reason why he did not do so was because the said William M. claimed the same as his own property.” The complainant, as the administrator de bonis non of Burton T. Dennard, is entitled to recover his three-fourths interest in said land at the time of his death, for the purpose of administering the same, provided it shall be satisfactorily shown that it is necessary to do so for the payment of the debts of his intestate, including the debt due by him to Mrs. Wilcher, which this Court has decided is a trust claim of the highest character, and chargeable on. his estate, under the agreement of compromise before mentioned. In order to defeat the payment of Mrs. Wilcher’s claim out of the land or the proceeds thereof, on the ground that she relinquished all her interest in it, it must be shown that she did so freely and voluntarily, in the manner prescribed by law at the time the relinquishment was made. The 2d section of the Act of 1760 provides the manner in which feme coverts may relinquish their rights to land conveyed by their husbands: .Cobb’s Digest, 161. There was only one witness to the deed of Mrs. Brady relinquishing her title and interest in the land, whereas, the law required two. In this suit between the administrator de bonis non of Dennard and the defendants, Mrs. Wilcher was a competent witness, and it was competent for her to testify as to acts and declarations of her husband at the time the deed was signed • there was no confidential communications revealed which the law prohibits. The charge of the Court to the jury, in view of the real questions involved, was so confused and unsatisfactory that it was calculated to mislead the jury, and most probably did mislead them. In view of the facts contained in the record, we affirm the judgment of the Court below in granting the new trial. Let the judgment of the Court below be affirmed.