43 Ga. 142 | Ga. | 1871
1. The Circuit Courts of the United States have, under the statutes organizing them, no probate jurisdiction. They have no machinery for recording a will, issuing letters and directing and supervising the administration. Any judgment they could give in the premises would only be collateral, and not final. This is, as we understand it, the settled rule, and the Circuit Courts uniformly decline the jurisdiction.
2. It appears, by the record, that the admission sought to be withdrawn was first made in previous trials of this case. It may fairly be presumed that the propounder has rested on this admission, and has not at hand the proof necessary to supply it. We will not say such an admission may not be withdrawn, but full and timely notice ought to be given— such notice as would give a reasonable time to the other side to supply the gap its withdrawal makes in his case. This withdrawal was proposed to be made during the trial. We agree with the Judge that this was too late — the notice too short. True, the Court might have continued the case, but both the other side and the public have a right that a speedy trial shall be had, and that the time and expense already devoted to the case shall not be lost.
3. It seems very clear to us, that there is nothing in the change of circumstances, to-wit: in the. emancipation of these slaves, that will justify the position taken by the plaintiff in error, to-wit: that the intentions of the testator cannot be
4. The argument of this case has turned mostly upon the effect of the Act of 1859 and the Code, upon this will. By our
It has been argued, that though this will was a good will when made, and though it might lawfully take effect at the death of the testator, yet, as such a will was illegal and void under the Act of 1859, it was by this Act revolted, and cannot now be set up as a will unless republished. We fully considered this point when this case was before us, at the December Term, 1869 : 40th Georgia, 18. We have allowed that decision to be questioned, as provided by section 204 of the Code, and we have listened, with open ears, to the able and elaborate arguments of the plaintiff's counsel, against the view we then took of the law as applicable to the facts of this case. But we are-constrained to adhere to the position we held in that decision, to-wit: that, as this was a lawful will when made, and a lawful will when the testator died, it may lawfully be probated, notwithstanding the Act of 1859, which was passed after the will was made, but became obsolete before the testator died.
The very meaning of the word revoke, involves a change of mind in the testator. A careful consideration of the different acts which the books and the statute treat as evidence of revocation, will show that the idea of a change of mind of
The cases of making an inconsistent will, or of tearing and obliterating, are plain, and the evident foundation of the rules regulating the effect of marriage, birth of children, etc., is that, in such cases, the testator has done an act from which it may be fairly inferred he intended to change the disposition of his property. It is true, such acts are now, by our statute, made acts of revocation and conclusive acts; but at common law, the foundation of them was, that when one had thus, by his ads, placed himself in such new relations, there arose the presumption that he intended to revoke, recall, his former will.
By our Code, sections 2434, 2442, wills may be revoked, either by an express act annulling the will, or by making an inconsistent will. It is provided, also, that marriage of the testator or the birth of a child to him, subsequent to the making of the will, shall be a revocation. I greatly doubt if there be, under our law, any other revocations than are provided for; and these are all, either express acts, directly revoking, or ads from which the law conclusively presumes the testator intended to revoke. For if, in any authorized way, he shows that he did not so intend, the revocation does not take place. So far as I have been able 'to find, no act of others has been held so to alter the presumed motives of the testator as to furnish legal data for a presumption of revocation. Though the bitterest feuds arise between the testator and his legatees, though great changes take place in the property of the testator and in the wants of the legatee, though all the reasons for the bequest may fail, yet the law does not undertake, except in the instances specified, to make for him
I am aware that it is often said a will is revoked by a “ change in a man’s circumstances,” and “ by an alteration of his estate.” But though these phrases are used in the books, it will be found, on examination, that they have a very limited application. The only “change of circumstances,” given as instances of this kind of revocation, is marriage and birth of a child, or marriage alone of a female. So far as I can find, these are the only cases. Swinburne, part 7, section 15, says: “ But no man is presumed to have revoked his testament. Insomuch that if a man live forty years after he has made his testament, yet is not the testament presumed to be revoked by the course of so long time? Though his wealth and substance increase, yet is not the testament revoked ?” As to “ alteration of estate,” this rather has reference to specific devises, of particular real estate. As a will is a conveyance, it was held that, if at any time before the testator dies, the nature of his title to the estate changes, the devise is revoked: 1st Redfield on Wills, 332 to 342. And this is the case referred to by the plaintiff’s counsel in Roll’s Abridgment, 617, upon which so much stress has been laid, and which our Brother Russell, has taken so much pains to have properly translated. “If a man had devised a use before the statute of 27th Henry, 8, which devise was revolted by the statute, because the use was transferred to the possession, yet, if after the statute of 32 Henry, 8, concerning devises, he had allowed the same without writing, this had been a new publication.” And, also, the case in Anderson’s Reports, page 7, when one devised laud before the statute of uses, the statute is treated as revoking the devise.
But, both these cases, as will be observed, are not cases of the revocation of wills, but of devises, and are nothing more than the common case put in the books when the title of the testator to land had altered, after the making of the will, and
Had this testator died while the Act of 1859 was of force, and had this will been presented to the Ordinary for probate, would the heirs-at-law have thought of setting up that it was 7'evokedf The objection would have been, not that the intentions of the testator had changed, but that his intentions were illegal, and could not be set up. The will would have been void, not because it was not the expression of the testator’s wishes, but because those intentions were illegal, and the Courts could not permit them to be carried into effect. I do not think, therefore, that it is a proper use of language to say that the Act of 1859 revoked wills obnoxious to its provisions. It made wills emancipating slaves, in the State
In the sense of the statute, the words will, deed, testament, etc., evidently mean only papers to which the maker of them has given his final assent, and not papers he still has in his own custody, and which he may or may not deliver, or die leaving unrevoked. The authorities on the subject of wills abundantly sustain this view of the matter. The making of a will is but the inception of it, and it doth not take effect until the death of the testator: 4 Co. Rep., 61 b. The case of Sutton vs. Chenault, decided by our own Court, 18th Georgia, 1, turns upon this very principle. The paper then in question was held no will, because the law, at the death of the testator, required a will to have three witnesses, and the Court say, however, it was lawfully executed when made, yet it did not become a will until the testator died. Until the death of the testator, the paper expressing his wishes is not a will; it is a mere inchoate act, which may or may not be a will, accordingly as the testator may or may not alter, or revoke, or destroy it. He is free to do this at any time. He cannot, by our law, even bind himself in it not to revoke it. Whenever it becomes irrevocable, it is no longer a will: Code, 2434. Experience has, however, found it necessary to limit, within certain fixed bounds, the modes in which wills may be revoked.
It will be found, I think, that the classifications of our Code pretty nearly, if not quite, exhaust the subject: 1st. Express revocations by writing: Section 2435. 2d. Eevocations by inconsistent wills, which to be effectual must ultimately take effect: Section 2435. 3d. Eevocations by acts mutilating, erasing or destroying the paper executed as a
5. The point of this case that the legatees, though capable of taking the legacy at the date of the will, under its provisions, and though capable of taking it at the death of the testator, without the emancipation, were, for a time, to-wit: from 1859 to June, 1865, incapable of taking. The question is perhaps not materially altered by this view of it, since from 1859 to 1865 the legacy to them would have been illegal. And, if the doctrine contended for be true, the Act of 1859 revoked the legacy because it made it illegal.
We state the ease, however, in this way, because, whilst it is almost impossible to find a case where a will, lawful at the time of making it, and lawful at the death of the testator; has yet been unlawful during a portion of the time intermediate; yet there are numerous cases put in the books, of specific legacies or devises, where this very state of things has ex
And again, part 7, section 19, paragraph 1, after saying that a legatee must be capable of taking at the death of the testator, he adds: “As for any other time, whether it be betwixt the malting of the will and the testator’s death, or betwixt his death and the probation of the will, it skilleth not.” So of the ability of one to make a will, he says — part 7, section 17, par. 2: “And here note, that there be two times wherein it is necessary that there be in the person of the testator ability to make a will; the one is the time of making the testament, when it secureth his substance or being; the other is the time of the death of the testator, when it receiveth his strength and efficacy. As for the time betwixt the making of the testament and the death of the testator, it skilleth not whether the testator have -any such power or not.”
6. By the 6th section of the Statute of Frauds, and by our Code, section 2437, wills are irrevocable, except by some other will in writing, or by burning, cancelling, tearing or obliterating the same. As these acts of tearing, cancelling, etc., may sometimes be equivocal in their meaning, and as the intent is of the essence of such acts, parol evidence and parol declarations of the testator to explain such acts, are necessarily admissible, though there are decided -cases confirming even declarations explanatory to the time the act was done: 8 Jurist, New Series, 440; Doe vs. Palmer, 6 English Law and Equity, 155. But declarations by a testator that he has no will, that he has destroyed a former will, declarations of his dislike to the legatees of a will, indeed, all declarations are inadmissible, to show a revocation.
At last, in reference to the whole question, is not the simple fact that Mr. Thomas made this will, and Jcept it by him mattered, in spite of the Act of 1859, and in spite of all the changes produced by emancipation, and died with it still in existence, wrapped up and carefully preserved, as the evidence shows — is not this conclusive evidence that he intended it to stand? Does it differ from the everyday case of one putting off from day to day the making of a will, more suitable to his present surroundings than some older will, until death takes him unawares, and he dies with his will unaltered? The statements it is proposed to prove have hardly any weight. Nothing is more unreliable in fact, than the declarations of men upon such matters. That eminent portrayer of human nature, Mr. Dickens, who, as it is now said, was himself some time in a proctor’s office, makes one of his characters, long experienced in wills and their incidents, say, while searching for the will of a deceased friend, that his declarations, made but a few days before his death, to the effect that he had a will, was very strong evidence that no will would be found. The law wisely treats such evidence as worthless, except in explanation of acts of destruction or cancellation, and we think the Judge was right in rejecting it.
Judgment affirmed.