42 S.C. 178 | S.C. | 1894
The opinion of the court was delivered by
On the 6th of September, 1878, W. H. McDonald, deceased, sent to his son, S. K. McDonald, the appellant, a check for $500, in response to letters from appellant that his house and lot in the town of Winnsboro was about to be sold by a building and loan association for a debt he was due said association. The money was applied to the payment of said indebtedness. On the 10th of September, 1878, S. K. McDonald conveyed the said house and lot to his wife, Maggie F. McDonald. On the same day, Maggie F. McDonald executed her bond for $500 to her father-in-law, W. H. McDonald, and to secure its payment, she executed a mortgage of said house and lot to the said W. H. McDonald. The bond and mortgage were then forwarded to W. H. McDonald, who kept said bond and mortgage in his possession until some time in 1886, when he returned it to his daughter-in-law, Maggie F. McDonald. Thereafter, during the year 1886, W. H. McDonald sent to S. K. McDonald a satisfaction of said mortgage.
On the 3d of October, 1883, W. H. McDonald'made his will, in which the following clause appears: “I do further will that what money I may have advanced from time to time to either of my children shall be deducted from their share of the estate, that all may share equal.” In making a final division of the estate of W. H. McDonald, the executors sought to charge S. K. McDonald with the $500 as an advancement, but the probate judge before whom the case was tried decided “that the loan to S. K. McDonald was satisfied by accepting the bond and mortgage of his wife, Mrs. Maggie F. McDonald, and that testator having satisfied said bond and mortgage as to her, the
The case came on for trial before Hon. W. H. Wallace, presiding judge, on appeal from the decision of the Probate Court, who decided that: “The testimony satisfies me that the five hundred dollars was intended and treated by the testator as an advancement to S. K. McDonald, and that he should account for the same,” and reversed the decree of the Probate Court. Appellant’s exceptions question the correctness of Judge Wallace’s decision.
There is no testimony rebutting this presumption; on the contrary, it is strengthened by the fact that W. H. McDonald made no demand on S. K. McDonald, but kept the bond and mortgage for a longer time than was necessary to bar the claim by the statute of limitations. The letter of W. H. McDonald does not contain any evidence rebutting this presumption, and is consistent with the theory that the debt against S. K. McDonald was extinguished by the bond and mortgage. The certificate in testator’s handwriting can not be said to furnish evidence against this presumption, because the presiding judge decided that it was not competent evidence, and should have been excluded, and the correctness of this ruling is not before this court for consideration.
We think the principle governing this case is stated in Kennedy v. Badgett, 26 S. C., 592-4, in which Mr. Justice Mclver says: “It seems that Leaunah Kennedy, during her lifetime,
It is the judgment of this court, that the order appealed from be reversed.