Terrell v. McKinny , 26 Ga. 447 ( 1858 )

By the Court.

McDonald J.

delivering the opinion.

This was a motion in the Court below, for a new trial, which the Court overruled, and the decision of the Court on that motion is assigned for error here. The action in the Court below was trover for the recovery of several negroes; Letty and her children. The plaintiff, Mrs. McKinney, was the daughter and only child of Richard Hodges, who, by his will, gave to her eleven negroes, and among them the woman Letty. By the will Letty was to be left in the possession of Mrs. Terrell, and to remain so during Mrs. Terrell’s natural life, then to become the property of his daughter, Martha Hodges.

Richard Hodges married the daughter of Richmond Terrell, and the plaintiff claims that the woman Letty was given by Terrell to his daughter on, or subsequent to that marriage. The defendant denies the gift. Hence both parties claim through Richmond Terrell. Indeed, Richmond Terrell was the original defendant in the Court below, and he having died pending the suit, Richmond J. Terrell administered on his estate, and, as administrator, was made party defendant in the place of his intestate. After the jury in charge of the cause had rendered a verdict against the defendant in the Court below, he moved for a new trial ,on the grounds in the motion as set forth in the foregoing statement.

[1.] The first ground in the motion is, that the Court erred in admitting in evidence the will of Richard Hodges. It does not appear in the record on what ground the defendant objected to Richard Hodges’ will, when it was offered in evidence. The presiding Judge allowed it to be received for the single purpose of proving title in the plaintiff, or in other words, to show that whatever title Richard Hodges held to the negro in controversy, passed, on his death, under his will as therein given. There was no error in that, for it certainly did not prove title in the testator. Whether he had a right to bequeath the negro was a distinct matter.

[2.] The request which defendant’s counsel made of the Court in writing, to charge the jury, ought not 'to have been given. To have given it would have been in violation of the judgment of this Court as pronounced in this case, on two occasions, 16 Ga. 21, 18 Ga. 570. In the first of these cases, this Court held that there was no remainder created by pa,rol; that it was not attempted to create one. The judgment pronounced in the last case is the same. I will barely add, thai the very general terms used in the Act of 1821 relative to conveyances generally, Cobb 169, might include verbal gifts, and if so, as a less estate than an absolute unconditional fee simple estate was mentioned, the donee of the life estate cannot claim a larger one, unless the gift was obnoxious to the provisions of the first section of that Act. It was not the case in respect to this gift. There is no objection to the bequest as expressed in the will. That is legal, and it vests the property in the plaintiff in the Court below so far as the title of the testator was concerned.

[3.] The next ground in the motion for a new trial is, that the jury found, for the value of the negroes, a sum greater than that laid in the declaration. The verdict of the jury is for a sum larger than the aggregate of the specific values of the negroes, as alleged in the declaration; but the damages found are not so large as are alleged in the ad damnum clause in the conclusion of the declaration. The jury cannot find exceeding that amount, but they may find a sum equal to or less than that sum.

[4.] The evidence was conflicting in regard to the passing of the title of the woman Letty, from Richmond Terrell to his daughter on the intermarriage of Richard. Hodges with her; but we are of opinion that the preponderance of it is with the verdict of the jury. The finding oí the jury violates no principle of law.

Judgment affirmed.