Dominguez v. Dominguez

Murray, C. J., after stating the facts, delivered the opinion of the Court.

The first error assigned by the appellant, is the refusal of the Court to instruct the jury as requested. There was no error in this; First, because this being a chancery case, and the jury having been summoned to ascertain certain issues of facts, which, when found, were not obligatory, but simply desired for the pur- ■ pose of informing the conscience of the Chancellor, there was no use or propriety in the Court instructing them as to what would be the law upon a given state of facts. It was their duty to find the facts, and if the Court adopted their findings, it was its duty to apply the law. Second, admitting the instruction to have been correct, as a mere legal proposition, the evidence distinctly shows that during the lifetime of his mother, the defendant had not acted as the executor of his father’s estate, but had assisted her in taking charge of the property, she being in possession by virtue of her right to one-half of the property of the husband, as well as the testamentary, guardian and coexecutrix of her husband’s estate; and that immediately upon her death, the defendant delivered up all the property in his possession to her executor.

[427]The second error assigned, is the refusal of the Court to set aside the verdict, because the first finding was not supported by the testimony, as the Court itself acknowledged. This finding is wholly immaterial, and cannot affect the case. Besides, it was shown by the evidence, and found by the jury, that the executor of the widow took possession of the estate in the Spring of 1834, and if such was the case, the plaintiffs’ connection with the estate previous to that time, could not invalidate a conveyance made one year after.

The remaining errors assigned are, that the Court erred in entering a decree upon the verdict, and in refusing to order an account between the parties.

The Court was compelled to enter judgment for the defendant, because the plaintiff had not sustained by testimony a single allegation of his bill. On the other hand, the evidence only exculpated the defendant of all fraud, and showed that the plaintiffs’ claim rested, for its foundation, upon bald and naked assertion.

There was no error in' refusing to order an account, because it was not asked for in the bill, and if it had been, under the case made by the evidence, it would have been improper.