Alfriend v. Fox , 124 Ga. 563 ( 1905 )

Cobb, P. J.

(After making the foregoing statement.) 1. The motion for a new trial contains three special grounds.. One complains that the verdict is contrary to a specified portion of the charge. This need not be considered. It raises no other question. than those raised by the general grounds of the motion. Another ground complained that the court failed to charge, that, there being no debts shown after ten years have elapsed, the law presumes the assent of the executor to the legacy. We know of no law which declares that in the absence of proof of debts the presumption of the assent of the executor to a legacy arises after ten years. Counsel for the plaintiffs cited no authority to sustain this contention. In addition to this, if such is the law it .should have been made the subject of a timely appropriate written request. In the other ground complaint is made of a specified portion of the charge. .The charge correctly sets forth the rule of law in reference to an executor’s assent to a legacy. The assignment of error was that the charge was not in the exact language of the code. Of course this assignment is without merit. If the charge sets forth the rule of law, it is immaterial what language is used by the judge, so long as it is of such a character that it is intelligible to the jury.

2. Counsel for the plaintiffs candidly state in their brief that their case depends upon two facts being established: (1) that there was a division of the land of the estate of James Hall between his two heirs, Sarah Hall and Ndnby Watts; and (2) that during the lifetime of William Watts, the husband of Nancy Watts, he reduced to his possession the land received by his wife under this division. It is claimed by the plaintiffs that the evidence demands a finding in their favor on both of these questions. There is evidence authorizing a finding in favor of the plaintiffs on both of these questions; but the jury having found to the. contrary, and the court having approved the finding of the jury, the judgment refusing a new trial must be affirmed unless the evidence demanded a finding in favor of- the plaintiffs on both of these questions. That is the question to' be determined by this court, whether there is any evidence which would authorize a jury to find that there was no division, or, if there was a division, that William Watts did not during his lifetime reduce to possession that portion of the land" which his wife received ■under the division. William Watts and Sarah Hall were coexecu-tors of the will of James Hall. All of his land was devised to Sarah Hall and Nancy Watts jointly. There was no provision in the will which defeated the marital rights of William Watts. After the death of James Hall, Sarah Hall took possession of a portion of the land, and she continued in possession of this portion until her death, which occurred in 1869, working the same with her own slaves during the existence of slavery, and with hands employed by her thereafter, and, so far as the record discloses, appropriating to her own use the crops made theréon. The other portion of the land, which is the land now in dispute, was worked by William Watts with his own slaves up to the time of his death which occurred in 1852, James Hall having died in 1840. Neither William Watts nor Sarah Hall, the coexecutors of the estate of James Hall, was ever discharged from the trust. The records of the court of ordinary showing an account of the sale of the perishable property of the estate of James. Hall and a tract of land in Lee county, and one return setting forth the receipts and disbursements, were introduced in evidence. There is nothing in the record of the court of ordinary disclosing either a division of the lands in Hancock county, where the land in dispute, is situated, or a sale of the same by the executors. The evidence relied upon to establish a division of the land between Sarah Hall and Nancy Watts, as legatees under the will of James Hall, is that Sarah Hall was in possession of one part- of it, and William Watts, in possession of another part of it. Each of .these parties had a, right to possession in the capacity of legal representative of the estate of James Hall. They could jointly possess the land as. executors, or one could take possession of a part as executor, and the other of another part. The mere fact of possession would not be conclusive of the right in which the possession was held. The presumption would be, until the contrary appeared, that they were in possession in their representative eapacit}^ and the burden is-upon the plaintiffs in the present case to show that the possession was not in such a capacity, which would be legal and regular in the absence of proof of a division of the estate between the legatees., The evidence as to a1 division of the land between the legatees depends upon the testimony of aged negroes who were the slaves of William Watts. While a reading of the' testimony of these negroes impresses one with the fact that they are endeavoring to tell the truth as they recall it, the testimony at best simply establishes the fact that the crops raised upon one part of the land were appropriated by Sarah Hall, and the crops raised upon another part were appropriated by William Watts. This would probably be sufficient to show that William Watts had reduced the crops to possession, and’ to that extent had taken advantage of his marital rights; but as it was possible for him to be in possession of the land as executor, and assert his right to reduce the property of his wife to possession simply as to the crops, the burden is upon the plaintiffs to show by satisfactory evidence that the land was actually divided between the legatees, and that the possession was in his own right, and not in. his right as executor of the will of James Hall. The evidence might possibly be sufficient to authorize a finding that there was a division between Sarah Hall and Nancy Watts as legatees under the will of James Hall, and that the executor assented to this division, and took possession of the land in dispute by virtue of his marital rights; but the evidence is not of such a character as to authorize us to say that the jury was constrained to find that this was the fact. It is, more than possible, it is even probable, that there was an agreement between the two executors that each should hold a portion of' the land in their representative capacity, and that each should not. be accountable to the other for the crops raised upon the land. The-burden being upon the plaintiffs to show the fact of a division, and the evidence upon this point being altogether unsatisfactory, and the-jury having found that there was no division, and this finding having been approved by the trial court, we do not feel authorized to. control his discretion in overruling the motion for a new trial.

Judgment affirmed.

All the Justices concur.