Duncan research files of
Mary Ann (Duncan) Dobson
the Genealogy Bug
Last revised May 26, 2009
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Duncan research files of |
1860 Fulton Co. GA Census
Atlanta Ward 5
Pg.853, #1048-1148, John W. DUNCAN 28 SCT atty at law
E.M. (f) 35 GA
Mary MCINTIRE 30 IRE
(MAD: mar. Mary Elizabeth Fort 1/13/1857 Baldwin Co. GA)
Cook's Dist.
Pg.917, #1463-1567, E.G. PONDER (m) 50 GA (blank) $10,000-$45,000
E.B. (f) 34 GA
Louisa WINN 29 GA
Robt. DUNCAN 4 GA
1870 Fulton Co. GA Census
Atlanta, Ward 1
Pg.115, #307-307, SETZER, Ann E. 33 NC (white) keeps house $0-$0
Thos. D. 16 GA painter
H.A. (f) 14, E.A. (m) 12 GA at home
DUNCAN, Elvira 22 AL (white) domestic svt.
Pg.140, #800-800, DUNCAN, M.M. (m) 30 GA (white) brick mason $0-$0
F.E. (f) 28 GA keepg. house
F.L. (f) 1 GA
(MAD: said to be Miles Marion Duncan; 1850 Coweta Co. GA census)
Atlanta, Ward 5
Pg.358, #565-675, DUNCAN, Mary E. 43 GA (white) keeping house $6,800?-$8,800
STEARNS, Sallie 35 GA BLACK domestic servt.
(MAD: indexed as BLACK)
Pg.364, #628-750, National Hotel
DUNCAN, Wm. 22 GA BLACK domestic servt.
(many other servants)
West End
Pg.378, #41-41, DUNCAN, Joseph 35 VA BLACK laborer $0-$0
Viney 40 SC BLACK keeping house
Lola (f) 4 GA BLACK
P.O. Atlanta
Pg.412, #510-487, DUNCAN, Hiram 65 GA BLACK farm laborer $0-$0
Mary 35 GA BLACK keeping house
Alfred 12, Matilda 10 GA BLACK
Perry (m) 9 GA BLACK
Chery? (Chersy?) (m) 9 GA BLACK
Millie 6, Caroline 4 GA BLACK
(MAD: Chery? was (f) Cherry in 1880)
Pg.412, #513-490, DUNCAN, Mary 35 GA BLACK domestic servant $0-$0
Gue? (m) 10 GA BLACK
Frank 6 GA BLACK
George 3 GA BLACK
Lucy 70 VA BLACK
Pg.412, #514-491, DUNCAN, Reuben 60 GA BLACK farmer $0-$200
Eliza 50 GA BLACK keeping house
Rose 22, Fanny 20 GA BLACK at home
Sally 18, Lizzie 13 GA BLACK at home
Pg.412, #515-492, HAYNES, George 30 GA BLACK farmer $0-$225
Rose 22 GA BLACK keeping house
Benjamin 8, Eliza 5 GA BLACK
Amanda 3, Easter (f) 1 GA BLACK
Bud (m) 3/12 GA BLACK b.Feb.
DUNCAN, Rose 3 GA BLACK
Pg.467, #1308-1270, DUNCAN, Pat. 30 GA BLACK farmer $0-$300
Lucinda 18 GA BLACK keeping house
Mary 1 GA BLACK
Pg.467, #1309-1271, DUNCAN, Harriet 70 VA BLACK keeping house $0-$0
COMLY, Betsy 75 VA BLACK
DUNCAN, Dave (m) 12 GA BLACK
DUNCAN, Alice 7 GA BLACK
Pg.512, #1955-1905, DUNCAN, Patrick 42 IRE (white) stone mason $0-$0, parents of foreign birth
Bridgett 39 IRE keeping house, parents of foreign birth
Marion (m) 18 NY day labor, parents of foreign birth
Stephen 15 NY attending school, parents of foreign birth
Sarah 10 GA attending school, parents of foreign birth
Michael 8, Tempy (f) 4 GA, parents of foreign birth
1880 Fulton Co. GA Census (from Stephanie Campbell 5/2000)
Atlanta, 65 Hunter Street; vol.10, ED 92, sheet 49, line 39
Pg.236A, #469-539, DUNCAN, George (w m) 50, mar. machinist consump[misc. info], GA [can't make out father's birthplace] GA (MAD: father b.VA per CD)
Duncan, Susan (w f) 42 wife, mar. keeps house, GA GA GA
Duncan, Bowlin (w m) 16 son, single, cracker make[or coach make - can't tell], GA GA GA
Duncan, Willie (w m) 13 son, single, farmer boy, GA GA GA
Duncan, Hugh (w m) 11 son, single, at home, conalgia[misc. info], GA GA GA
Duncan, Vercy (w f) 9 daughter, single, at home, GA GA GA
Duncan, Joseph (w m) 5 son, single, at home, GA GA GA
1910 Census, Atlanta City, Fulton County, Georgia (from Kathy Cawley 11/2008)
S.D.# 5, E.D.# 101, Page# 221, Image# 17 of 34
754 Piedmont Avenue
258-207
DUNCAN,
Samuel A., Head, age 58, M1X, 30 yrs., PA./PA./PA., electrician/telegraph
Caroline B., Wife, age 55, M1X, 5 chi. born, 2 living, PA./PA./PA.
Edwin A., Son, age 16, PA./PA./PA., attends school
SHEPARD, Virgil W., Son-in-law, age 29, M1X, 3 yrs., GA./GA./GA., decorator/buildings
SHEPARD, Margaret W., Daughter, age 26, M1X, 0 chi., PA./PA./PA.
ONEAL, Jane, servant, age 35, single, IR./IR./IR., cook
(KDC: 1880 Pittsburg 13th Ward, Allegheny Co. PA)
1920 Census, Atlanta City, Fulton County, Georgia (from Kathy Cawley 11/2008)
S.D.# 5, E.D.# 128, Page# 62, Image# 21 of 62 [enumerator is Samuel A. Duncan]
754 Piedmont Avenue
123-224
DUNCAN,
Samuel A., Head, owns/mort., age 70, PA./PA./PA., accountant/general
Caroline V., Wife, age 68, PA./PA./PA.
Edwin A., Son, age 26, single, PA./PA./PA., salesman/rubber tire?
SHEPARD, Virgil W., Son-in-law, age 39, GA./GA./GA., decorator/gen'l
SHEPARD, Margaret W., Daughter, age 36, PA./PA./PA.
SHEPARD, Virgil D., Son, age 8, attends school, GA./GA./PA.
O NEALL, Jennie, servant, age 51, single, IR./IR./IR., cook
MAD: Campbell and Milton Co. GA records are separate but in Fulton Co. courthouse
Index to Wills, Campbell, Milton & Fulton Cos. GA, 1833-1948 (FHL film 409,878)
Index does not say where to find records
D-206: Rosa M. Duncan
D-741: Mary E. Duncan
General index to estate records, Fulton Co. GA, 1854-1921, D-G (FHL film 404,273)
Name, proceeding, book Title & volume & page
John W. Duncan, #1708, Administrator appointed, Minutes B-108
Bond & Power of Attorney, Bonds A-565
Letters, Letters of Admin. B-7
Inventory, Inv. & Appr. B-212
Inventory & Appraisement & in Floyd Co., lot in Marietta, Inv. & Appr. B-142
Years Support, 12 Months Support A-122
Annual Return 1869, Annual Returns D-587
Annual Return 1871, Annual Returns E-383
Returns 1872 & Settlement with new admin., Annual Returns E-465
Annual Return 1872, Annual Returns E-743
Annual Return 1873, Annual Returns F-102
Annual Return 1874, Annual Returns F-581
Annual Return 1875, Annual Returns G-121
Annual Return 1876, Annual Returns G-265
Administrator Dismissed, Minutes C-67
(MAD: Col. John W. Duncan, b. SCT, listed in issue of 1/8/1869, from pg.133, "Burials and Deaths Reported in the Columbus Enquirer [Muscogee Co. GA], 1832-1872" by Buster W. Wright, 1984; FHL book 975.8473/C1 V48w)
Mary E. Duncan, #1680, Years Support (John W. Duncan), 12 Months Support A-122
Will, Wills D-741
Will Probated in Common Form, Minutes N-155
Will Probated in Solomen Form, Minutes N-821
Letters, Letters Testamentary D-334
Letters, Letters Testamentary D-334
Inventory & Appraisement, Dist. 14, Land Lot 78, Streets: Peachtree, Harris, Spring, Williams, Harris, and Dist. 14, Land Lot 77, Alabama Street; Inv. & Appr. F-374
Sell Land & Personalty, Dist. 14, Land Lot 77, Alabama Street, and Dist. 14, Land Lot 78, Streets: Harris, Williams, Peachtree, Spring; Minutes Book N-840
Annual Return 1910, Lots on Harris, Williams, W. Harris, and lot 5 on E. Alabama and lots 1-2-3; Annual Returns H3-733
Final Return and Settlement, lot on E. Alabama St.; Annual Returns L3-318.
Executors dismissed, Minutes N-60.
Letters of Dismission, Let. of Dismission Book D-564
Rosa M. Duncan, #8366, Will (in Alabama), Wills D-206
Will Probated in Solomn form, and Renunciation, Minutes M-164
Letters, Letters Test. C-365
MAD: many other Duncans, most seem late
Fulton Co. Will Book D, 1901-1909 (FHL film 409,887)
D-206: Rosa M. Duncan, 1902 - not copied
D-741: Mary E. Duncan, 1908 - no children named, money left to her brother Z.C. Fort, not copied otherwise.
Fulton Co. GA Indexes to deeds
MAD: Deed books cataloged by year range of recording, not by Volume Number; no way to tell which deeds are what year
Grantors 1854-1871, v.1, A-Z (FHL film 501,326)
G-342: Duncan, John W. to Thomas P. Fleming, Dist. 14, LL 78, City Lot 56, Marietta & Walton Sts.
G-486: Duncan, John W. to William Markham, Dist.14 LL 77 City Block 3, City Lot 9-10, Alabama St.
H-440: Duncan, J.W. and Mrs. J.W. et al to T.P. Fleming
I-776: Duncan, John W. to Joseph P. Logan, Dist. 14, LL 77, City Lot 6, Broad St.
J-14: Duncan, John W. to Eliza Ann Shiver et al, Ellis St.
K-383: Duncan, John W. to Chapley M. Wellburn, Dist. 14, LL 78, City Lots 119-154, Grubb & Walton Sts.
L-373: Duncan, John W. et al to John T. Fletcher, Dist.14 LL 51, City Lot 93
N-569: Duncan, John W. to W. Patt Berry, Trustee, Dist.14 LL 52, Calhoun St.
O-774: Duncan, Mary E. to Moses Cole, City Block 4, City Lot 2, Alabama St.
Grantees 1854-1878, v.1, A-Z (FHL film 501,335)
G-341: William H. Dabney to J.W. Duncan, Dist. 14, LL 78, City Lot 56, Marietta & Walton Sts.
H-441: S.T. Biggers to J.W. Duncan & wife
I-775: J.G. Westmoreland to J.W. Duncan, Dist. 14, LL 77, City Lot 6, Broad St.
K-382: James F. Cooper to John W. Duncan, Dist. 14, LL 78, City Lots 119 & 154, Walton & Grubb Sts.
L-310: City of Atlanta to Miss M.E. Duncan, Dist. 14, LL 45, City Block 56, City Lot 2, Oakland Cemetery
L-314: H. Sells to John W. Duncan, Marietta Sts
L-358: George Winship to Mary Elizabeth Duncan by trustee John W. Duncan, Dist. 14, LL 78, City lots 132 & 133, Peachtree, Spring & Harris Sts.
L-359: Joseph P. Logan to Mary Elizabeth Duncan by trustee John W. Duncan, Dist. 14, LL 77, City Block 4, City Lot 2, Alabama St.
O-264: Moses Cole to Mary E. Duncan, City Block 4, City Lot 2, Alabama St.
O-471: Aquilla J. Orme to C.C. Duncan, Dist. 14, LL83, City Lot 20, Hunter & Haynes Sts.
"Reports of cases in law and equity argued and determined in the Supreme Court of Georgia at Milledgeville, December term 1867 and part of June term 1868" by N.J. Hammond; Georgia Reports, Vol.37, pgs.265 to 276 (California State Law Library, Sacramento, 2/2004)
ALEXANDER M. WALLACE, administrator of WM. WALLACE, deceased, et al., plaintiffs in error, v. W. A. WALKER, executor of WM. WALLACE, deceased, defendant in error; Supreme Court of Georgia, at Milledgeville; 37 Ga. 265; December, 1867, Decided.
Equity. Demurrer. Decided by Judge Collier. Fulton Superior Court. October Term, 1867.
In 1864 William Wallace was domiciled in Tennessee, and there died testate. By the will he bequeathed: 1st, To his wife such of the household and kitchen furniture as she might select, and certain lots of land, estimated at $1500.00, also "one thousand dollars out of the Southern money on hand" and the balance, and all other effects, or money on hand she was authorized to use for her support till an executor could take charge of his estate, and for the support of herself and family; she was to manage the whole estate until relieved by an executor. 2d, To Mary B. Robinson, his grand-daughter, $1000.00, in Knox County bonds, $1000.00 in Confederate States seven per cent. bonds, and a set of silver spoons. 3d, To his son, Jesse G. Wallace, a tract of fifteen hundred acres of land, described by metes and bounds, and estimated at as many dollars 4th, To his son, Wm. C. Wallace, three town lots, valued at fifteen hundred dollars, and charged with the payment of any debts for which testator was his security. 5th, To Mary B. Bicknell, his daughter, one set of silver spoons, and to her son, a gold watch, etc.
The remainder of his estate, real and personal, was to be divided between his wife, said Mrs. Bicknell, and the three sons of testator, to-wit: Alexander M., Jesse G., and William C., first charging them with certain advances, rated as therein specified. His executor was authorized to sell at public or private sale, in his discretion, without order of Court, etc. His negroes to be disposed of according to the laws existing at the time of distribution.
Item 9th, charged Jesse G.'s legacy with payment of any security debt for him for which testator was liable. Item 10th, provided for payment of his debts and funeral expenses out of any money that may be on hand.
The conclusion of the will is as follows: "Lastly I do nominate and appoint my son, J. G. Wallace, my executor, to execute this will, and I hereby direct that no bonds or security be required of him for the faithful discharge of his duties as such, and that he be allowed five hundred dollars for his services as such; but if, from the vicissitudes of the war or from any other cause, my said executor shall find it impracticable to become executor, and attend to the duties thereof in a reasonable time, I appoint and direct my son, W. C. Wallace, to execute this, my will, under the same regulations as to bond and compensation as above; and should the said W. C. Wallace, from similar or any other cause, find it impracticable to execute this said will, in a reasonable time, in that event I nominate and appoint my wife, Mary S. T. Wallace, in conjunction with W. A. Walker, as executrix and executor of this, my last will and testament, and that they perform the duties thereof under the same rules and regulations as applied to my said sons as it regards executing bond and compensation, and that the said five hundred dollars be divided between them."
This will was executed 26th March, 1864. In July, 1864, it was duly probated, neither J. G. Wallace nor W. C. Wallace appeared for qualification as executor, the widow declined to qualify, and said W. A. Walker was duly qualified as executor.
Letters of executorship were issued to said Walker, and he took possession of the estate. The assets of the estate so far as the executor knows were certain notes on various persons for various amounts, set out in an exhibit, eight Knox county bonds, Knoxville & Chattanooga Railroad Company for $500.00 each, making $4000.00, four ditto for $100.00 each, and eight bonds Knoxville & Kentucky for $500.00 each, making a gross sum of $10,627.57.
The liabilities of the estate, as exhibited, were as follows:
J. M. Toole note to Henry Smith and Townsens, $4000.00
J. M. Toole to Gillespie, judgment, 425.00
J. M. Toole to Lackey, 1150.00
J. G. Wallace to Brabsen, 325.00
J. G. Wallace to Porter Academy, 150.00
J. G. Wallace to J. G. Kerr, Sr, 460.00
W. C. Wallace to Parson's, administrator, 575.00
W. C. Wallace to A. M. Keith, 1400.00
W. C. Wallace to McGehee, 350.00
A. M. Wallace to Dr. G. Cameron, 750.00
Years support to widow, and individual liabilities, 1000.00
(total) $10,585.00
These liabilities are mainly as security for his said sons and his son-in-law Toole, named in said schedule. All the creditors reside in Tennessee, or elsewhere out of Georgia, and the condition of said sons and son-in-law is such that the executor must pay said liabilities.
The widow, as she had a right to do under the laws of Tennessee, dissented from said will, and was thereby entitled to dower and a distributive share, to-wit: one seventh of the personalty not required to pay debts. She had also $600.00 assigned to her for her year's support. Her dissent made, by said laws, the will void as to her, but left it of force as to all other persons.
By the laws of Tennessee real estate cannot be applied to the payment of debts till the personalty is exhausted, and the personalty of said estate is insufficient to discharge its liabilities, without using said Knox County bonds or their proceeds.
The heirs at law are said widow, said Jesse G., William C., and Alexander M., said Mary B. Bicknell, and the heirs of Martha J. Toole, deceased, and of Margaret A. Robinson, deceased, all of whom reside in Tennessee, except said Alexander M. Wallace. Before he died, testator left with John W. Duncan, in Atlanta, Georgia, for safe keeping, said Knox County bonds, Duncan then having a vault, and being a banker, and in the habit of receiving such things for accommodation, with no view to compensation or profit. So he received these bonds.
At the same time testator left with said Duncan, for safe keeping, some Confederate bonds and some other bonds belonging to the Female Institute at Marysville, Tennessee. These, like the others, Duncan was to keep, as a gratuity, for testator.
Duncan so held these bonds till after testator's death. Then said Alexander M. Wallace, residing in said Atlanta, though well knowing of said last will and testament, and that the testator died testate, in September, 1865, petitioned the Ordinary of Fulton County, Georgia, for temporary letters of administration on said testator's estate, stating in his petition that said testator died intestate, and procured from the Ordinary of Fulton County permanent letters of administration on said estate, at November Term, 1865, of the Court of Ordinary.
John W. Duncan became security on said Alexander M. Wallace's bond, (which is in the usual form of administrator's bonds.)
Before becoming such security, Duncan had it understood with said Alexander M. Wallace, that Duncan should retain said Knox County bonds as indemnity against loss by reason of his suretyship aforesaid. In this way Duncan and Alexander M. Wallace have since had a sort of joint ownership of, or claim on said bonds, Wallace claiming them as such administrator and Duncan holding them for indemnity. Meanwhile Duncan and Alexander M. Wallace severed from said bonds coupons for the payment of interest, to the amount or value of $1,000.00, and converted or attempted to convert the same to their own use; they still have said coupons or their proceeds. Besides those coupons, said bonds when they came to the hands of Duncan and said Alexander M. Wallace, had other coupons for interest attached to them. Those coupons then matured and those maturing up to the first of January, 1867, amounted to about $2,000.00, and these said Duncan and Alexander M. Wallace have converted to their own use, and no account of them has been rendered to the ordinary of Fulton County.
In October, 1866, and again in February, 1867, said executor demanded said bonds and coupons from Duncan and Alexander M. Wallace, and though they knew said testator died testate, that his will had been proven, and that said executor had letters of executorship, yet they refused to deliver any of them to him, and proceeded to deliver the same to the heirs at law of said testator, as if he had died intestate, to-wit: in March, 1867, giving to each of, said heirs (including Alexander M. Wallace) $1,000.00, making in all $7000.00. This proceeding was undertaken and hurried through to prevent said executor from getting said bonds, and applying them to the payment of said debts, and from administering them according to said will and the laws of Tennessee.
On the 29th of March, 1867, Alexander M. Wallace as such administrator made and filed with the ordinary of Fulton County the following return:
"Statement of receipts and disbursements of the estate of Wm. Wallace, deceased, by A. M. Wallace, administrator.
Receipts.
Eight bonds Knoxville & Kentucky R. R. Co., $500.00 each, $4000.00.
Eight bonds Knoxville & Charleston R. R. R. Co., $500.00 each, 4000.00.
Four bonds Knoxville & Charleston R. R. Co., $100.00 each, 400.00.
(total) $8400.00.
Disbursements.
Acc't of Ordinary, Voucher No. 1, $14.25
J. W. Duncan, Voucher No. 2, 150.00
L. J. Gartrell, Voucher No. 3, 150.00
Adm's. Com's., $7200 at 5 per ct., Voucher No. 4, 360.00
Ordinary dismissal, Voucher No. 5, 25.00
Stationery and stamps, .75
(total) $700.00
A. M. Wallace, two bonds, K. & Ky. R. R. Co., $500.00 each, 1000.00
S. T. Bicknell and Mary A. Bicknell, two bonds K. & Ky. R. R. Co., $500.00
Beach, Voucher No. 6, 1000.00
Jesse G. Wallace, two bonds K. & Ky. R. R. Co., 500.00 each, Voucher No. 7, 1000.00
W. C. Wallace, two bonds K. & Ky. R. R. Co., 500.00 each, Voucher No. 8, 1000.00
Mary T. Wallace, two bonds K. & Ky. R. R. Co., 500.00 each, Voucher No. 9, 1000.00
Heirs of Martha J. Toole, two bonds K. & Ky. R. R. Co., 500.00 each, Voucher No.10, 1000.00
Margaret A. Robinson, two bonds K. & Ky. R. R., 500.00 each, Voucher No. 11, 1000.00
Proceeds of sale of $1,400
Knoxville & Charleston R. R. bonds, 700.00
(total) $8400.00
ALEX. M. WALLACE, Administrator of William Wallace, deceased. Sworn to and subscribed before me, this March 29th, 1867, Daniel Pittman, Ordinary."
Walker, executor, filed his bill in equity, in Fulton Superior Court against said Alexander M. Wallace, and John W. Duncan, averring the foregoing as facts.
That bill charged that said return was incorrect in every particular, except in so far as it charges Alexander M. Wallace with the bonds: incorrect, because it does not charge him with the coupons or the interest; because he had no right so to distribute the bonds and take credit thereby; because he had no right to charge said commissions and expenses of administration, he not being the administrator rightfully; because the estate owed Duncan nothing, and because the last item in the return is obscure and unintelligible, or if intelligible should be a debit against him, rather than a credit in his favor. The bill further states that it is not known whether any of the bonds have been sold, and avers that if they have been, they should be accounted for at par; because said administration, taken out as aforesaid, is irregular and illegal, and nothing done under it binds the estate (except it be for the advantage of the estate, and be approved by the executor;) because they were sold without an order of Court, and not at public outcry, after advertisement according to law. Complainant avers that said bonds are worth $12,000.00, or other large sum; one thousand dollars, of which under the will, belong and should by the executor be paid to Mary A. Robinson.
Discovery was waived. The prayer was that the said administration be set aside; that said defendants be decreed to deliver to said executor said bonds and said coupons, that they may be taken to Tennessee to be administered according to the laws of that State, and according to said will; and that said defendants account and pay to said executor the full value of said bonds and coupons, for said purpose; and if necessary, said Wallace's letters of administration be set aside as fraudulent. It concluded with a prayer for general relief and for subpoena.
To this bill said defendants demurred on the grounds:
1st. For that said W. A. Walker, by his own showing, is not the executor of the said W. Wallace, deceased, never having been appointed such by the last will and testament of said deceased, nor legally appointed or qualified as such by any competent authority.
2d. For that, if complainant is such executor by said will, and by appointment and qualification in the State of Tennessee, as is claimed in said bill, yet he has no legal right to institute and maintain this suit.
3. For that there is no such authenticated exemplification of the will and the probate in Tennessee and appointment and qualification of complainant, as is required by law.
4. For that the bill on its face shows that the defendant has completed his administration, at least, that he has accounted and paid over all assets, under the direction of proper authority, and this, they are advised, is a conclusive settlement thereof, as to complainant.
5. For that said bill does not harmonize with the public policy which, sub modo and by comity only, allows foreign executors to sue in our courts, but is offensive in its charges against our courts.
6. For that said bill seeks, at the instance of a foreign executor, to take assets out of our jurisdiction, with both creditor and legatees or distributees our own citizens here, where the funds are secured; indeed, after distribution and at the instance of a party under no bonds, subjecting them to additional costs, and whether there is a will or not, identically the same individuals are entitled to the funds.
7. For that no foreign creditor has any right in our courts through the comity extended to foreign executors, etc., etc. These creditors rights are direct and absolute. Such bill being predicated solely on such basis, has no equity.
8. For that our courts will not notice, nor in any way inquire of, debts or assets in Tennessee, or the management of estates of decedents there, or their creditors there, and thus predicate rights and suits, or either, here.
9. For that many and various other reasons apparent on the face of the bill, deny to complainant the relief claimed, or any other relief.
The court below overruled said demurrer, and that is complained of here.
(MAD: Arguments of counsel omitted here)
[opinion] WARNER, C. J. It appears from the record in this case, that William Wallace died in the State of Tennessee, after having executed a will, disposing of his property. The will was executed on the 26th day of March, 1864, and duly admitted to probate and record in the Probate Court of Tennessee, in July, 1864; and W. A. Walker, one of the executors appointed therein, was duly qualified as such executor to execute the same. At the November Term, 1865, of the Court of Ordinary, of Fulton county, in this State, Alexander M. Wallace, knowing that the testator had left a will in the State of Tennessee, (the place of his domicil at the time of his death,) representing to the Court, that the testator had died intestate, obtained letters of administration on the estate of said William Wallace, and proceeded to collect and dispose of the personal assets of the decedent, as such administrator, in this State. The executor of William Wallace filed his bill in the Superior Court of Fulton county, (exhibiting therewith a certified copy of the will and his appointment by the Probate Court of Tennessee, as required by the Code,) against Alexander M. Wallace, as administrator aforesaid, and John W. Duncan, his security, praying that said letters of administration may be set aside as fraudulent, upon the several grounds alleged and set forth in the bill, and the defendants may account for the personal assets of the testator received by them, and be decreed to pay over to him the value thereof, as the executor of the testator, in order that the same may be disposed by him in accordance with the provisions and directions of the last will and testament of the deceased.
To this bill the defendants demurred upon the several grounds set forth in the record. The Court below overruled the demurrer, to which decision the defendants excepted, and assigned the same as error here.
As it regards the objection taken to the legality of the appointment of the executor by the Probate Court of Tennessee, as well as to the regularity of the proceedings of that Court in relation thereto, the legal presumption is in favor of the legality and regularity of the proceedings of that Court. Revised Code, sections 3700, 3710. Taking the several allegations in the complainant's bill to be true, as the demurrer necessarily admits them to be, for the purpose of this decision, the main and controlling question in the case is, whether the grant of administration by the Court of Ordinary of Fulton county, under which the defendants claim protection, was not obtained by fraud, and therefore ought to be set aside? What are the facts? The defendant, Wallace, it is charged, applied to the ordinary for letters of administration on the estate of the deceased testator, representing to that Court that he died intestate, when he knew at the time that he died leaving a will. The letters of administration were granted to him by the Court of Ordinary upon this false and fraudulent representation of the facts of the case. The record shows that William Wallace did not die intestate, but on the contrary he died leaving a will, and that Wallace, the defendant, knew it at the time he applied for and obtained his letters of administration on the decedent's estate. Has a Court of Equity in this State jurisdiction to set aside the letters of administration so procured by fraud, and to require the defendants to account with and pay over to the lawful executor the personal assets of the testator received by them or either of them, to be applied by the executor under the will, in accordance with the law of the testator's domicil at the time of his death? By the 2414th section of the Revised Code, it is declared that "executors qualified according to the laws of their domicil upon wills properly admitted to probate in another State, upon filing with the Court a certified copy of such proceedings, shall be entitled to use all the processes and remedies prescribed by the laws of this State, in the same manner as if qualified under the laws of this State." This section of the Code gives the foreign executor the right to file his bill in the Courts of this State against the defendants, and it is no breach of comity for him to do so. The 3537th section of the Revised Code declares that "The judgment of a Court of competent jurisdiction may be set aside by a decree in chancery for fraud, accident or mistake, or the acts of the adverse party, unmixed with the negligence or fault of the complainant." This judgment of the Court of Ordinary granting the letters of administration to the defendant, Wallace, the complainant seeks to set aside upon the ground that, by his own act, he fraudulently represented to the Court that the deceased testator died intestate, when he knew the fact to be otherwise, and by that means fraudulently procured the judgment of the Court in his favor. In such cases this Court has maintained the jurisdiction of a Court of Chancery to set aside the judgment. Mobly v. Mobly, 9th Ga. Rep., 247; Loyless and wife, v. Rhodes, ib., 547. This view of the main question involved in his case necessarily disposes of all the other questions made by the demurrer.
It has been insisted by the counsel for the defendant in error, that the grant of administration to Wallace was void, because there had been a prior grant of letters testamentary upon the decedent's estate, in the State of Tennessee. When letters testamentary or of administration have once been granted upon a decedent's estate in the proper Court in this State, and subsequent letters are taken out here upon the same estate, there can be no doubt that the latter would be void; but when letters testamentary or of administration have been granted by a Court in a foreign jurisdiction, a different question is presented, upon which we express no opinion. In our judgment, upon the state of facts presented by the record in this case, the demurrer was properly overruled by the Court below.
Judgment affirmed.
Go to the Fulton Co. GA Military Records
Gordon Co. GA Deeds (FHL film 422,611)
E-485: Mortgage, 17 July 1866, John F. Green of Gordon Co. mortgage to John W. Duncan of Fulton Co., lots #274, #275, #276, #267 in 13th Dist. 3rd Sec., 160 acres each, for $1,000; wit. J.W. Buckner JP, Chas. M. Green.
Spalding Co. GA Deeds (FHL film 454,926)
C-549: Spalding Co. GA, (blank day & month) 1860, James H. Logan of Spalding Co. GA to John W. Duncan of Fulton Co. GA, $2500, lot in City of Griffin, part of lot #144 in 2nd Dist. originally Monroe then Pike now Spalding Co., adj. N side of the railroad, adj. lots #1 and #28, containing 2 acres; wit. Geo. W. Grant, Chas. H. Johnson JIC; rec. 3/18/1863.
C-550: Fulton Co. GA, 13 May 1862, John W. Duncan of Fulton Co. GA to John F. Tanner of City of Richmond, Henrico Co. VA, $2500, lot in City of Griffin, part of lot #144 in 2nd Dist. originally Monroe then Pike now Spalding Co., adj. N side of the railroad, adj. lots #1 and #28, containing 2 acres; wit. L.P. Grant, John Collier NP; rec. 3/18/1863.
"Atlanta and its builders : a comprehensive history of the Gate City of the South" (Fulton Co. GA) by Thomas H. Martin; pub. Atlanta: Century Memorial Pub. Co., 1902, 1468 pgs. (LH8418, HeritageQuest images 4/2007)
Vol.1, pg.116: ... Trinity Methodist Episcopal church was dedicated in September, 1854, ... Rev. J.P. Duncan preached the first sermon in the handsome new church.
Vol.1, pg.167: First years of the war. ... 1861 ...When Jefferson Davis arrived in Atlanta on the 16th of February, ... the reception committee was composed of ... Col. J.W. Duncan, ...
Vol.1, pg.635: Destruction of Atlanta. ... The charred walls of Atlanta were yet warm when scores of her exiled citizens returned ... Colonel J.W. Duncan, ...
Vol.2, pg.139: Municipal History. The Atlanta Gas Light Company, through its president, J.W. Duncan, presented a memorial to the council on the 21st of September, 1866, ...
"The history of the state of Georgia from 1850 to 1881 : embracing the three important epochs, the decade before the War of 1861-5, the war, the period of Reconstruction : with portraits of the leading public men of this era: by I.W. Avery; pub. New York: Brown & Derby, c1881, 765 pgs. (LH10506, HeritageQuest images 4/2007; FHL film 547,589 item 1)
Pg.33: Democratic Convention of 1857 ... Among the delegates were ... John W. Duncan of Fulton, .... A smart little gentleman was John W. Duncan, whose regret was that he was foreign born, thus excluding him from being President. (MAD: Fulton Co. GA)
Pg.73: Southern Commercial Convention, assembled on the second Monday in May [1858?] - Fourth District -- J.W. Duncan
Pg.160: The convention of March, 1860 ... delegates ... J.W. Duncan.
"History of the Western Reserve" by Harriet Taylor Upton; pub. Chicago: Lewis Pub. Co., 1910, 2184 pgs. (LH7269, HeritageQuest images 5/2007; FHL book 977.13 H2u v.1-3 and films 934,867 item 2 and 934,868 items 1-2)
Pg.1416-1417: JOHN H. BRITTON, born January 24, 1832, in Van Buren township, Onondaga county, New York. John Britton with his wife and eight children, removed to Ashtabula county, Ohio, in 1835, ... John H. Britton married, in 1861, Margaret McClellan, then of Madison Co., one son, John Fremont Britton, resides formerly at Atlanta and now at New Orleans, married at Atlanta, Ida Duncan, and they have one daughter, Helen. (MAD: Atlanta, Fulton Co. GA)
"Burlington [Iowa] Weekly Hawk-Eye" July 23, 1864; columns devoted to news of the Civil War (from Kathy Duncan Cawley posted on Duncan mailing list 1/2003, original source not given; MAD: Griggsville, GA, not listed in 1906 Atlas, nor IA or AL; Atlanta, Fulton Co. GA)
From Sherman's Army. In sight of Atlanta, on the Chattahoochee River, Pace's Ferry, July 5, 1864
A SHOCKING SIGHT [near Atlanta, "Gate City"]
While on the mountain yesterday, the body of a man was found, mortified and rotten, suspended to a tree. To all appearances he had been dead three weeks. Papers were found in his pockets identifying him as a railway employee, named Ben. Duncan, of Griggsville, Georgia. It is believed he commited suicide, as money was found on his person. The rebel citizens and soldiers know nothing as to how he met his death.
"The Constitution" Atlanta [Fulton Co.], Georgia, Wednesday, January 6, 1869, Morning Edition (transcription by and from Kathy Cawley 1/2004)
Death of JOHN W. DUNCAN. -- We are pained to announce the death of Col. John W. Duncan, which took place at his residence in this city at 1 o'clock yesterday evening. Col. Duncan was born in Scotland, the son of a Presbyterian minister; came to Georgia when quite a youth, and was educated in this State: subsequently studied law in Savannah, afterwards resided for a time in Milledgeville, whence he came to this city some twelve or fifteen years ago.
Col. Duncan, in connection with Judge Lochrane, was, before the war, an editor and proprietor of the Atlanta Intelligencer. During the war, he held the position of Assistant Treasurer of the Confederate States, with an office in the city. At the time of his death he was President of the Atlanta Gas Company, and a Director in the Atlanta National Bank.
Col. Duncan has no children. He leaves a wife to mourn his loss.
As a polished gentleman and genial companion he will long be remembered by his many friends in this community.
"The Constitution" Atlanta [Fulton Co. GA], Georgia, Wednesday, June 2, 1869; Morning Edition (transcription by and from Kathy Cawley 1/2004)
City and Suburban Affairs.
PERSONAL. --- Mr. Duncan, the accomplished editor of the New Orleans Bee, gave us the pleasure of a call yesterday. The Bee is one of the sprightliest of the New Orleans dailies. Mr. Duncan is a brother of the late Col. John W. Duncan, of this city.
"Atlanta Constitution" Atlanta, Georgia, 6 Sep 1891 (from Kathy D. Cawley 10/2006)
Death of an Infant. LENOIS E., the eight-months-old child of MR. and MRS. JOHN DUNCAN, died at their home on Fraser street yesterday afternoon. The parents have the sincerest sympathy of many friends in their bereavement. The funeral will take place this afternoon at 4 o'clock. The burial will be at Westview.
"Atlanta Constitution" Atlanta, Georgia, 13 Sep 1891 (from Kathy D. Cawley 10/2006)
HUGH DUNCAN DEAD. HUGH L. DUNCAN, an Atlanta boy, died yesterday morning in Savannah of typhoid fever. This morning his remains will reach the city at 7:10 o'clock and an hour later will be taken to Smyrna, where they will be laid to rest in the old burying ground.
HUGH DUNCAN was just twenty-two years of age and was a bright boy who gave promise of a long and useful life. For years he worked in THE CONSTITUTION office and at the time of his death was engaged on The Savannah Morning News. He leaves an aged mother, MRS. S.E. DUNCAN, who resides at No. 20 Georgia avenue, and three brothers and a sister. His eldest brother, MR. B. DUNCAN, is now connected with THE CONSTITUTION. A delegation from the Atlanta Typographical Union will meet the remains at the union depot this morning. [KDC: 1880 census Atlanta, Fulton Co., Ga.; 1870 census Barnesville, Pike Co., Ga.]
END
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