35 S.E.2d 1 | Ga. | 1945
1. Where a legatee in a will filed in the court of ordinary a petition praying that the administrators with the will annexed be cited to make full settlement of the estate with the legatees, and, pending an appeal to the superior court from the judgment of the court of ordinary thereon, and before the appeal came on for trial, the same legatee filed an equitable petition in the superior court alleging that the administrators wrongfully refuse to assent to his legacy and are wrongfully charging barred open accounts against him as advancements, and praying in the equitable petition that it "be made a part of the citation proceedings," that the will be construed and accounts claimed against him as advancements be held to be barred by the statute of limitations, and that the administrators be directed to pay him his distributive share of the estate, and where the court prior to the trial of the appeal case sustained a general demurrer to such equitable petition, such ruling could be reviewed only by a direct bill of exceptions timely filed in that case, and will not be considered under an assignment of error in exceptions pendente lite entered in the appeal case, in which appeal proceeding no effort had been made to consolidate that proceeding with the suit in equity, notwithstanding an assignment of error in the bill of exceptions, filed in the appeal case a year later, based upon the exceptions pendente lite. Accordingly, the exceptions sought to be taken to the previous order sustaining the demurrer to such equitable petition can not be considered in connection with or as a part of the exceptions taken to the case tried on appeal.
2. The judge charged the jury as follows: "I charge you further — the existence of the fact testified to by one positive witness is to be believed rather than that such fact did not exist because many witnesses who had the same opportunity of observation swore that they did not see or know of it having existed or having transpired. This rule does not apply where, the parties having equal facilities for seeing or hearing a thing, one swears that it occurred, and the other that it did not. This is the rule as to positive and negative testimony. The jury has heard the testimony of the witnesses and will consider this rule in passing upon their credibility." Error is assigned on this charge as being prejudicial because the court failed to qualify it by an instruction that this rule is not applicable unless other things are equal and the witnesses are of equal credibility, citing Southern Railway Co. v. *517 O'Bryan,
3. The movant excepts to the admission over his objection of the testimony of one of the administrators that the two indicated returns of the administrators, made to the court of ordinary and introduced in evidence, were correct, and that, as indicated, a disposition of the estate had been made except the disbursement of $2200 and the payment of commissions and court costs; the objection being that this testimony was irrelevant and immaterial on the issue as to whether the disputed item charged against the movant should be treated as a debt barred by the statute of limitations or an advancement. It is urged in the movant's brief that it was harmful and prejudicial to the plaintiff for it to be made thus to appear by the returns (the admission of which in evidence was not objected to) that all of the other heirs had accounted for the items charged to them, whereas, under the contention of the plaintiff, the only question was whether the item charged against him was an account which was barred or was an advancement. This being a petition by the movant against the administrators for an accounting and settlement, manifestly their returns would properly be placed before the court, and the testimony of one of the administrators that they were correct could not be taken as irrelevant in such a proceeding, the effect of such testimony going only to the extent of showing that the returns properly set forth the acts and doings of the administrators, and did not relate to whether or not their acts and doings should be construed as legal and authorized.
4. In this State, unless a will makes provision for the payment of advancements (Treadwell v. Everett,
(a) "An advancement is any provision made by a parent out of his estate, for and accepted by a child, either in money or property, during his lifetime, over and above the obligation of the parent for maintenance and education. Donations from affection, and not made with a view to an accounting, nor intended as advancements, shall not be accounted for as such; nor shall the support of a child under the parental roof, although past majority, nor the expenses of education, be held as advancements, unless charged as such by the parent." Code, § 113-1013. "A memorandum of advancements, in the handwriting of the parent, or subscribed by him, shall be evidence of the fact of advancement, but shall not be conclusive as to the value of the property, unless inserted as part of testator's will or referred to therein." § 113-1014.
(b) Under the Code sections just quoted, a proved memorandum in the handwriting of such a testator with respect to the transfer of money or property which shall have been actually made is, when designated as an advancement, conclusive evidence of its character as such, but does not constitute the only method by which advancements can be proved, and therefore does not preclude proof of other advancements. This is true because such evidentiary memorandum does not constitute a part of the will, and is not executed with the same solemnity. See Bransford v. Crawford,
(c) A controverted declaration in writing, which was made after the death of the father by a child, that he was "due" his deceased father a stated amount for stock and money, and which as an account would on its face be barred by the statute of limitations, would, if such admission be established as true, have probative value only as to the fact that he had received such an amount from his father, but a self-serving declaration that it was a debt owed to his father and not an advancement would not establish the nature and character of the transaction.
5. There being no evidence as to the nature and character of the item referred to in the preceding division of the syllabus, and there being no proved facts or circumstances such as would support a presumption in favor of an advancement, the finding in favor of an advancement was unsupported by the evidence.
Judgment reversed. Bell, C. J., Duckworth, Atkinson, andWyatt, JJ., concur.