Smith v. Rosser , 37 Ga. 353 ( 1867 )

Warner, C. J.

This was a bill 'filed by the legatees under the will of the testatrix, against the defendant as executor thereof, for an account of the property of the testatrix which came into his hands as such executor, including certain negro slaves. The cause was tried in October, 1859, and a verdict found for the complainants. A motion for a new trial was made in the Court below, which was overruled, to which the defendant excepted, and now assigns the same for error here. It appears from the record, that the defendant claimed three of the negroes in controversy, to-wit: Sarah and her two children, Bose and Ann, as his individual property under a parol gift from the testatrix in her lifetime, and had retained possession of said negroes under said gift as the owner thereof, under a bona fide claim of right, and title thereto. The complainants insisted that the parol gift of Sarah was invalid, and that the defendant held her and her two children as the executor of the testatrix, and was liable to account therefor as such executor. It appears that Bose died from sickness in 1850, without any fault or neglect of the defendant. The defendant and testatrix lived upon the same lot of land, and he managed and controlled her property. Upon the trial the counsel for the defendant requested the Court to charge the jury that “If they should believe that the boy Bose died by the act of God, and without any fault of defendant, and if complainants made no claim on defendant for him, and if defendant, in good faith, believed said boy was his, and as such, retained possession of him till his death, then defendant is not liable for the value of said boy.” We think that under the evidence in this record, this request ought to have been given in the charge to the jury. If, as the verdict shows, the boy Bose was the property of the testatrix, and was held by the defendant .as her executor, and while in his possession as such, he died by the act of God, the loss should fall upon the .estate of the testatrix, and not upon the defendant; unless by some tortious act of the defendant he is liable "to account for his value. The assertion of title to the property, under the evidence in this case, is not such a tortious act as would make him liable to the complainants as executor of the testatrix, for the value of the'boy; especially,-when no demand had ever been made upon him for his value, before the institution of this suit. The principle asserted in the 3023d section of the Revised Code (although not declared as positive law,- at phe time of this trial) is, we think, a sound principle applicable to the facts of this case, so far as the defendant’s liability for the value of the boy Bose is concerned.

Let the judgment of the Court below be reversed, anda new trial granted.