Andrews v. Halliday
63 Ga. 263
Ga.
1879
Check Treatment
Bleckley, Justice.

1. In an equity cause, a motion in arrest of judgment is not, in name at least, precisely appropriate. Nevertheless, where there is a verdict, and its terms are such that no decree can properly be rendered upon it, something analagous to a motion in arrest ma3r be used to set aside the verdict and clear it out of the way. It is of little or no consequence by what name the motion may be called. We think the finding of the jury in the present case was not such as the exigencies of the controversy required, and *269•that no legal decree whatever can be based upon it. The verdict does not declare that’ the distributees were not advanced or that they were advanced equally, or that -one was advanced so much and another so much, but that none of the distributees shall be charged with any advancements made to them before the death of the intestate. The Code, in section 2582, speaks differently. It says: “ In the distribution of' an estate, every child •of the intestate, and if a child be dead, the representative of that distributive share, must first account for any •and all advancements made in intestate’s life-time,” etc. It is the province of’ the jury to ascertain, from all the -evidence before them, what sums have been advanced, and to whom, and when this is done the law determines the rest. If this litigation were between Mrs. Andrews and Mrs. Halliday alone, and turned altogether on the release by the former to the latter, amounts might be immaterial, but the children of II. L. Wylie are the real contestants with Mrs. Halliday, and they are not parties to the release, and cannot be affected by it. In order to settle with them, it is absolutely necessary to know, not only how much the share of the estate which they represent has been advanced, but how much the other two shares have been advanced. The jury ought to have found the several amounts specifically. Failing to do so, the result is simply a mistrial, and another trial should be had for this reason were there no other.

2. But there was a regular motion for a new trial on various grounds. It was certainly an error to charge the jury that they would be authorized to find against taking any account of advancements, if the intestate thought at his death that the advancements were all equal, and made a will on that basis. As there was in fact an intestacy, the law, and not the intestate’s belief or opinion, controls the question of accounting. If the advancements were really unequal, that the intestate was under a misapprehension as to their equality would make not the least difference. Why *270should it? The scheme of the law is for each distributee to account for what he actually got by way of advancement, not for what the ancestor may have supposed lie got. And this does not interfere with the right of the latter to-put a valuation upon property where he has undertaken to-do so. The two questions are altogether different.

3. There was a misapprehension on the part of the court as to the standing of the release by Mrs. Andrews to Mrs. Halliday, under the state of the pleadings. There was no-attack upon the release on the part of Mrs. Andrews. She was not one of the interpleading parties, or rather she filed no answer and prayed for no relief. In order for her to avoid the release, she would have to repudiate or disaffirm it. Her election to do so, and the ground of her resistance to or attack upon the instrument would have to be alleged in the pleadings. But there is nothing of the sort in the record. Eor aught that appears she is content to abide by the document j and it is obvious that no one else is prejudiced by it, or has a right to insist upon its want of consideration. There was really no issue upon the release, and all the trouble that it occasioned upon the trial was unnecessary. If it was in the nature of a gift, there was no revocation of it, and it should have been treated as, for the time being, operative between the parties to it. Of course it would not and could not be in the way of an accounting by either of these ladies to the children of their deceased brother.

4. It seems to us that there was no error in finally disallowing the amendment to Mrs. Iialliday’s answer which she sought to make on the call of the cause for trial. There had been a decree to interplead, the pleadings bad been made up, and the final trial was about to open. Wingfield,, the administrator wbo filed the bill, was interested in the-matter of the proposed amendment, and be was no longer a jjarty before the court, having been succeeded in the administration by DuBose, and there was no proposition to make him a party, nor was there any motion to open or set *271■aside the decree of interpleader. The amendment as a whole was not germain to the business in hand, and if any ■part of it was suitable to be introduced at so late a stage, there was no suggestion to separate that part from the rest. In executing a decree for the defendants to interplead among themselves, it would be odd to treat the complainant as though he were a defendant, and to reach forth after an ex-complainant, no longer a party to the cause, and overhaul his accounts also. The ease is enough mixed and confused without engrafting upon it such an anomaly as this.

5. The general rule is that the complainant in a hill of interpleader merely stirs up a war and then leaves the real belligerents to fight it out, he retiring from the scene to repose in dignified ease, holding, the while, the prize which is to reward the victor. We do not see that in this instance there was any occasion for the complainant to take part in the combat. So far from being entitled to conclude the .argument, he had no right to be heard at all.

What we have ruled will be found, on examination, to .grasp all the substance there is in the case. We have not ■cut it into as many pieces as does the motion for a new .trial, and to do so we consider unnecessary.

Judgment affirmed.