Phillips v. Chappell, No. 4

No. 4 | Ga. | Aug 15, 1854

By the Court.

Benning, J.

delivering the opinión..

Y/hether the intention of James Hopkins was to give the negroes to his daughter Amelia, as an advancement of so much of her portion in his estate, or as a present over and above that portion, or even as something in compromise of a claim which she set up against Mm, the instrument which he made to her, without the -necessity of having to do much if any violence to the words of it, is capable of subserving that intention. The rela- ■ tionship of parent and child being considered,, the intention is doubtless to he presumed, as long as there is nothing but the face of the instrument to go by, to have been an advancement. Ellison vs. Cookson, (1 Ves. Jr. 108.) But this presumption is one which, at least in Equity, is liable to he rebutted, and rebutted by parol evidence; such, for example, as shall show the intention to have been either of the other two mentioned things. In support of this proposition, numerous cases may he found cited in 2 Stark. Ev. 569, and in note 1003 to Phil. Ev. with Cowen & Hill’s Notes.

[1.] The Court below, therefore, in rejecting the evidence because it was parol evidence, erred.

At the time when James Hopkins made the admissions, he had, it may be true, parted with the “possession” of the negroes ; but if it be true that he had also parted with “all interest” in them, how comes it that his son, the defendant in error, can say that they are any part of the father’s estate, and claim them by inheritance ? The nature of ,the son’s claim, is such ,as to make it indispensable for him to concede that the father, at the time of making the admissions, had not parted with all interest in the negroes.

This being so, the admissions of the father hound the father, as they were against his interest; and what binds the ancestor binds the heir. Smith vs. Smith, (3 Bing. N. C.) And see Dartmouth vs. Roberts, (16 East. 344) Ivat vs. Finch, (1 Taunt. 141.)

[2.] The Cant below, ikonyfere, in holding that Hopkins, the ancestor, at the time of ’"g the admissions, had parted with all interest in the slaves k> such o sort that his admissions scould not binAHs kok, e-rrec.

^ The effect cf admitting the erNsnce, 4 is conceived, would have been, not to “'set up r v?” — not to make out the instru■•ment to be a will, but to k cut \ ?,.& deed — a conveyance on a valuable csr-sidoiation- — t? ? compromise of a claim'— • a conveyance, therefore, irreuocrbli — a cav;eyance conveying ¡a right in the present — a possession in the tr/oure.

Therefore, as it appears to us, the Court below was wrong In bolding that the effect of the evidence, if admitted, would be to set up a will by parol.