Brandon v. Rowe

58 Ga. 536

Opinion

"Warner, Chief Justice.

The complainants filed their bill against the defendant as administrator, for an account and settlement, waiving discovery. On the trial of the case, the jury, under the charge of the court, found a verdict in favor of the defendant. A motion was made for a new trial on the several grounds alleged therein, which was overruled by the court, and the complainants excepted.

One of the grounds of the defendant’s defense was, that he had received Confederate money for debts due to the estate in good faith, which perished on his hands, and that he was therefore entitled to be protected under the law. The defendant offered in evidence Confederate notes to the amount of $6,190.00, as having been received by him as administrator, which he had kept separate from his own money, all of which, except one ten dollar note, were dated 17th of February, 1864. In his testimony, as it appears in the record, he stated that he collected the Confederate money which he then had on hand all along through the years 1861,1862,1863 and 1864.

The court charged the jury, amongst other things, “ that if the evidence shows that from time to time the new issue of Confederate money was, by Rowe, the defendant, substituted in lieu of the old issue of such money, that does not change the identity of the bills, but it still remains the property of the estate.” The court also charged the jury, in substance, at the request of defendant’s counsel, “that if John T. Fulwood took only a life estate under the will of Mary Jones, and if he refused to take possession of the property under the will, and did not receive it, and died without receiving it,'and after the estate was merged into Confederate money and notes — based upon the hire of negroes, and worthless— and the estate was in that condition when the heirs of John T. Fulwood had a right to the estate, at the time of his death, then they can recover no more than John T. Fulwood, or his administrator, could have recovered.”

1. There is no evidence in the record that the defendant substituted the new issue of Confederate money in lieu of the old issue of such money, at any time; but, on the contrary, the evidence is, that the $6,190.00, which he claims credit for as having perished on his hands, was received by him along through the years 1861, 1862, 1863 and 1864, all of which, except ten dollars, was dated in February, 1864. There is no evidence in the record, that we can discover, that John T. Fulwood refused to take possession of the property under the will of Mary Jones, or that he did not receive it in his life-time. Both of the foregoing charges of tbe court having been given to the jury upon an assumed state of facts, not authorized by the evidence, it was error, and we are constrained to reverse the judgment for that reason.

2. Besides, the defendant did not make a very satisfactory showing, according to the ruling of this court in Westbrook vs. Davis, 48 Ga. Rep., 471, as to how the $6,190.00 Confederate money was received by him, or when, or from whom collected.

Let the judgment of the court below be reversed.