Gresham v. Baugh

JACKSON, Chief Justice. This is an action at law of rather novel character. It is brought to recover a remainder interest in the estate left [191] . by the will of a father-in-law by the son-in-law, for the use of his children, his wife_ being dead, but at what time she died is not specified. It would seem that administration on her estate would be necessary to a recovery at law; and, if not, that the husband himself Would be heir of his wife. Yet this suit is for the use of the children, and without explanation or reason assigned therefor. It is not a separate estate of the wife under the will which is exhibited to the complaint, but if it were, the husband would be heir in part to his wife’s separate estate. But, passing all this by, which was unnoticed in the court below, no request in writing was made, and verbal requests are certified only as explained and met in the entire charge. That charge gives fairly and substantially the law to the jury, the evidence is sufficient to support their verdict, and in such cases this court has often ruled that it will not interfere. As well as we are able to gather from the bill of exceptions and transcript of the record, and explanatory certificate of the judge, it seems that the complaint of plaintiff in error is grounded .on the failure of the executor to sell the life-estate of his mother when his father died, some time about 1856, in order to pay debts, and instead of doing so, in paying the debts himself; and it is insisted that these debts thus paid should not be allowed as a credit to the executor. .The presiding judge put the issue on the good faith of the executor, saying to the jury, if these debts were paid by him to speculate on the estate, then they should not be allowed him on final settlement; but if paid bona fide, then they should be. Of course, if done bona fide, interest should also be allowed. We fail to see error in the charge. The truth is, that the emancipation of slaves and the loss of that property gave rise to this suit; this plaintiff has received some two or thrée hundred dollars for h.is wife’s interest in remainder ; the jury found that sum to be his share; the judge thought it enough, and we do not feel called upon, sitting to cor [192] rect errors of law, to cipher upon the sum again — unless some glaring error was made apparently probable at least. As to any other alleged error in the charge, we cannot consider it, because the court below expressly refuses to verify any except as it may conform to the charge in full which he sends up. If counsel wish to have alleged errors corrected and to avoid differences of recollection between the judge and themselves, the remedy is prescribed in the statute and is complete. Let the request to charge be put in black and white, and let the whole charge be also made, by request, in writing. Judgment affirmed.