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Every once in a while, when I'm tired, I just Google people to see what turns up. Tonight I was trying all the possible spellings of Phares Goare's name and I found this, in a Google book:Reports of Cases in Law and Equity, Argued and Determined in the Supreme
By Georgia Supreme Court
Atlanta, June Term, 1870, page 676 and 677
JAMES M. SHIVERS, executor, plaintiff in error, vs. ARM-
STEAD GOAR, et a!., defendants in error.
Where there was a legacy in a will “ to revert to the testator's estate and
then over to his daughter," in case the legatees should sue to compel
an account for the testator’s acts as the guardian of the legatees, and
the legatees accepted the legacy and enjoyed it for six years, and there
was no fraud or mistake proven :
Held, That the legatees are estopped from suing to compel the account.
Construction of Wills. Estoppel. Before Judge HAR-
RELL. Webster Superior Court. March Term, 1870.
The Ordinary of Stewart county sued, (for the use of Arm-
stead Goar and Abner F. Goar,) James L. Shivers, as the executor
of Pharis Goar, deceased, upon a bond given by
Pharis Goar, as the guardian of said Armstead and Abner F.
and their sister. Several defenses were filed. The only one
important here, is that there could be no recovery for said
usees because they had accepted a certain legacy under the
will of Pharis Goar, deceased, upon certain terms therein
stated and were thereby estopped to make any claim against
his estate, etc. This will more fully appear by reference to
the evidence.
Plaintiff's counsel read in evidence the returns of Pharis
Goar as administrator of one Levin Goar, by which it appeared
that Pharis Goar had received certain money and property
for said wards and had charged them with property
delivered, board, etc., about balancing the accounts. These
returns embraced 1843, 1846 and intermediate years. Plaintiffs
also proved the value of said usees' property for hire
while Pharis Goar had it in hand as their guardian and offered
evidence to show that they had worked for Pharis Goar,
and sought thus to balance the charge for their board.
The defendant introduced the will of Pharis Goar, executed
in 1857, by which he gave almost all of his property to
his daughter, gave a portion to his wife, and then by the 6th
and 7th items devised as follows: " 6th. I give and bequeath
to my grandsons, Armstead
Goar and Abner Goar, the following lands, to wit: All of
lot number 50, in the 19th district of said county, which I
have not heretofore deeded to William C. Daniel and James
M. Shivers, and all that part of number 51 in said county
and district, which lies south of the path leading from the
house occupied by my said grandsons to the spring and north
east of the road leading from their house to Wm. C. Daniels,
together with two acres round the house, west of the road.
7th. The lands heretofore bequeathed to my grandsons
Armstead and Abner, is to revert to my estate and become
the property of my daughter Willison G. Goar, if the said
Abner and Armstead Goar, or either of them, shall attempt
to break this my will or to interfere in any way therewith,
or shall sue my estate for or on account of my having been
guardian for them." The balance of his will was the appointment
of his executors and a guardian for said daughter.
It was shown that in 1858, Armstead Goar, took possession
of said land; that in 1859, he worked it and other land
with Pharis Goar's slaves; that Pharis died in February.
1870, and that about that time, both of said grandsons took possession
of said lands and have ever since had possession of
them ; he, Pharis Goar, said, in 1858, that he had given or
would give said land to said grandsons, and it was shown that
this land was worth $4.00 or $5.00 per acre. Defendant
testified that he was unwilling to become executor of said
Pharis Goar's will ; that Armstead, being of age, promised
to stand by the will, and not sue the estate, if defendant
would become executor, and that in 1863, after Abner came
of age, he promised to give him a receipt in full for all claims
against Pharis Goar, as his guardian. There was other evidence,
but as it related to points not noticed by this Court, it
is immaterial here.
The Court charged the jury, that said plaintiffs were not
concluded by said items in said will, from suing the executor
of Pharis Goar, their guardian, although they went
into possession of the lands bequeathed to them by said will.
and had ever since remained in possession of it; that by
bringing this suit, plaintiffs only forfeited their said legacy,
and the same became the estate of said daughter, mentioned in
said 7th item of the will, etc. The jury found for plaintiffs
$1,021 36 and costs.
Defendant's counsel moved for a new trial upon the grounds
that the Court erred in said charge; that said verdict was
contrary to the law and evidence, and other grounds no;
passed upon by this Court. The Court refused a new trial
and that is assigned as error.
• J. L. WIMBERLY and S. H. HAWKINS, by the Reporter, -
for plaintiff in error, cited Irwin's Code, section 2273; Miller
et al, vs. Cotton et al., 5th Ga., R., 3545. C. B.
WOOTTEN, HAWKINS & BURKE, for defendants.
McCAY, J.
We are clear tbat there ought to be a new trial in this case.
The legacy to these young men, was given to them distinctly
upon condition that they would not press their claims against
the testator's estate, for his acts as their guardian. After his
death they accepted the legacy, took possession of it, and
have had it now nearly ten years. We hold that they are
estopped. It would be gross injustice to permit them to enjoy
the legacy ten years, and, after perhaps wearing out the
land, or finding it depreciated, to set up their claims, with
accumulated interest and repudiate their own act of 1860.
When they accepted the legacy, that closed their mouths.
There is no pretense, that they acted under a mistake or that
they were misled. It is a plain open case of taking a legacy
upon condition that they would give up their claims, enjoying
the legacy eight or ten years, and then repudiating their own
act.
But admitting this was a condition subsequent, that these
boys always were to have the right when they pleased to
throw up the legacy and sue, are they not to account for the
rents and profits of the land?
Those rents belong to the estate, it is the executor's duty
to collect them, and he has a right to set them off against
this claim. It is always the duty of the executor, to deliver
over the estate to the legatees. If this land belongs, under
the will, to the testator's daughter, it is the executor's duty
to take care of it, rent it, until he can deliver it to her. The
right to collect the rents is in him as executor. Much more
is this offset good in this case, because except these boys,
the daughter is the sole legatee; the gift to the wife is a mere
charge on the properly in her. Besides, we are satisfied that
under the evidence as it appears in the record, the verdict
ought to have been for the defendant.
The board of these boys was under the proof, always
worth more than the negro hire ; their brother-in-law fixes
at $150.00 per year. There was not any year, under the evi-
dence, that the negro hire was this much, nor was there anv
evidence that either of the boys worked for the testator.
We put our judgment mainly, however, upon the ground
that the legatees are estopped, by accepting and enjoying this
legacy, from now bringing suit.
Judgment reversed. W. U.
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