Lowe v. Bryant, 30 Ga. 528

Lowe v. Bryant

30 Ga. 528 | Ga. | 1860

By the Court.

Lyon, J.,

delivering the opinion.

On the trial, the plaintiff in error offered to prove by James T. Ilarman, one of the witnesses to the will, and the person who seems to have written the codicil, that the testator said, before the will was executed, and before the codiicil was prepared, that he made an ante-nuptial contract with his wife, Martha T. Lowe, by parol, and that in said contract he did agree, that if he, Lowe, died before the said Martha T., that he would, by will, give to the said Martha and her children all the property that he should receive by said Martha upon their intermarriage; and that he had this will written in accordance with said ante-nuptial contract, and kept it by him for that purpose. Upon objection, the Court ruled out the evidence, and we think that such ruling *533was error. It is true that the evidence was offered, not for the purpose of enforcing such ante-nuptial contract, but for the purpose of sustaining or aiding the construction put on the will and codicil by the defendant. The evidence was not competent for that purpose, as there was no ambiguity about the will or codicil. The import was plain and obvious, giving to the widow only a life-estate in the property in controversy, but the evidence was admissible for the purpose of setting up and enforcing such ante-nuptial contract. If it was true, that the testator did make such ante-nuptial agreement, and his admissions are competent to prove it, and he had this will written in accordance with such agreement, and kept it by him for that purpose, this was such a part performance of the agreement as took the ease out of the Statute of Frauds, even if it was within the statute, which, in the opinion of this Court, is very doubtful. And when the testator signed and executed that will, it became a fully executed one, and could not be altered by any codicil or subsequent will that he could make. In Cookes vs. Mascall, 2 Vern., 200, the parties had agreed among themselves upon terms of settlement, and the agreement was drawn up in articles, in writing, to be mutually signed, but was not, either before or aftex\ The Court decreed that Mascall should perform the agreement according to what was contained in the writing, as was intended should have been done^although no other agreement was reduced to writing.

In Taylor vs. Beech, 2 Ves., Sr., 297, the property of the wife, by a previous marriage, was agreed to be assigned to trustees for her separate use during her coverture, and to be applied, after her death, to such uses as she should appoint. They sent to an agent to prepare the writing, but the marriage took place before the agreement could be carried out. A proper draft of assignment was afterwards proposed, in which altei’ations were made by the husband’s own handwriting. On delivering it to his wife, he told her he had made no other alteration than was for her benefit, and suffered her to receive it to her separate use during coverture. The wife, by will, gave the £500 00 to the plaintiffs, who filed the bill for it. The defendant pleaded the Statute of of Frauds because of the agreement not being reduced to writing. The Coux’t overruled the plea, saying that the agreement was good, if afterwards signed by him ; “ that the *534rule extends not to facts subsequent, viz: showing a part performance in which the statute cannot be pleaded.” The correctness of the first decision has been greatly doubted as being a violation of the Statute of Frauds, and it is only cited to show the extent to which the highest Courts of England have gone to take these cases out of the Statute of Frauds, and that even those Courts will lay hold of the slightest circumstances, for that purpose. This Court, in coming to its conclusion in this case, was not governed by that case or any like it, but on the facts proposed to be proven by Harmon. If the statement in the record is true, we hold that it presents a complete reply to the relief prayed for by the complainants.

But for this, the case would be with the complainants.

Judgment reversed.