Gillispie v. Day

| La. | Jul 15, 1841

Bullard, J.

delivered the opinion of the court.

The defendant is the grand-father of William Day, junr., and became his tutor after the second marriage of the plaintiff, his mother, and received the proceeds of the estate of Thomas W. Day, the father of the minor child. Up on the death of the grand-son, his mother inherited his estate as sole heir, and this action is brought to compel William Day, the grand* father, and late tutor, to render an account of his administration.

The defendant claims, 1st, allowance for the price of a slave Stephen, which in his answer he alleges was loaned or given by verbal agreement to his son Thomas W. Day, the father of tbe minor, and that the slave either belonged to him, the respondent, or he was entitled to the proceeds thereof by reversion, the act being invalid as a donation; and 2d, for $550 loaned to his son.

I. We are of opinion that the defendant is precluded from setting up any title or claim to the slave Stephen or the price for which he was sold. Admitting the title to have been in him previously, and that the verbal’ donation per se, was insufficient to divest him, yet the defendant, as a member of the family meeting,advised the-sale of the property andsuffered the slave to be sold as the property of his son Thomas W. Dáy ; and in an act of partition in the record, and signed by the defendant, the price of the slave is set down as forming a part of the estate which came into his hands as tutor of the heir at law. ' Nor can we recognize the defendant’s right as rever-1 sioner on the authority of the case of Prejean’s heirs vs. Le Blanc, (3 La. Rep., 22;) upon which the counsel relies. The donee, T. W. Day, did not die without posterity which have recently decided to be an indispensable condition to the J r right of reversion or return ; Rouanet vs. Hunt, (tutor,) 17 La. Rep., 409.

A witness tes-,tlfying *?, t*1®" confessions,verbally made, ofa deceased person is the weakest of all testimony; contoaXsted or °°n' victed of perju-rT although he may swear falsely. g0) pi00f ^ a’dn^e'confes0 ¿ion of an aggregate amount above soo doi-^ent'S without ?0?ie co.I,robo' rating circumstance; al-witnlss testified to his own knowledge to two successive amounting to-thanel$500™the he'sufficient11^1

II. With respect to the defendant’s claim to retain $550, averred by him to have been loaned to his son, a single witness deposes that Thomas W. Day, the son, told him in 1834, that his father, (the present defendant,) had furnished h'im with 250 dollars to pay for land purchased of John Allen, and he told witness that his father furnished him with 300 dollars or upwards, the precise amount not recollected, to aid him in paying’ for a negro girl by the name of Charlotte.

This kind of evidence, not hearsay, as was contended, but the extra judicial confessions - verbally, of deceased persons is the weakest of any. It cannot even be contradicted, much less can the witness be convicted of perjury, ness to disprove the confession no longer exists. The only wit-J But thé tes- . .... . . . . , , . timony or a single witness is insufficient without corroborating circumstances, to prove a debt above $500. It is true that if a single witness were to depose to his knowledge of two = re cessive loans amounting together to more than $500, the evi- . . dence might he sufficient, because that would be proving, two distinct contracts. But proof by one witness to a single confession of an aggregate amount of moré than $500, is in our opinion insufficient without some circumstances in corrobora- . TTT, . , , , tion. What is there m the case to strengthen the statement of the witness ? Let it he observed in the first place that the confession was not that the father had loaned but that he had the son with the money, and although in ordinary cases jt 'woui¿ amount to the same thing as there would exist an obligation to refund. Yet between the father and his son, about to establish himself in the world, the former might be presumed, without much violence, to intend an advancement 01 donation. When settling the estate of the son no such c]ajm was pretended. If the alleged loan was made after the r 55 marriage of the son it was a community debt, and the community was settled with the widow by the defendant himself, without advancing any such pretensions. These circumstances satisfy us that the setting up of such a claim against the grandson’s estate is an afterthought, and that the money ivas furnished not as a loan but as an advancement.

The court in our opinion erred in allowing an ofisett for the value of the slave Stephen and for the 550 dollars.

The judgment of the Court of Probates is therefore reversed, and proceeding to render 'such judgment as ought to have been given below, it is further decreed that the plaintiff recover of the "defendant four thousand, one hundred and eighty-three dollars and ninety-two cents, the balance in his. hands as tutor of William Day, junr., together with interest at five per cent, from and after this day,. July 8, 1841, with costs in both courts.