39 Ga. 108 | Ga. | 1869
1. Our Code, séctions 2538 to 2542, settles, with precision, that a child, who has received advancements, shall account for them if he proposes to come in as a distributee, and that advancements shall be estimated at their value at the time they were received, unless there was a value fixed at the time, by agreement. The fact that an advancement has become valueless, by destruction, or death, or emancipation, since it was received, or that it has, by growth, or by appreciation, become more valuable, has nothing to do with it. Indeed, it would seem to be the express intent of the statute to settle this very matter, as it does, by enacting that the value of the advancement, at the time of its reception, is the criterion: Code, sec. 2542. We see no difference between the loss of a slave by death, or his depreciation in value, so as to be worth less from sickness, and his loss by the act of the government— by emancipation. It is true that the sudden emancipation of the slaves of the State, by the results of the late war, has, as to this kind of property, made the law of the Code, perhaps, an unjust one. The whole advancement has been lost, and the estate out of which the heirs are to get their portions, has suffered in the same way. So that it now often occurs that an advanced child has to account for an advancement, while those who have not been advanced, and who have lost their share of an estate by emancipation, gets compensation in other property. Several such cases, as well as the present, have come under my observation. We are inclined to think that this rule, prescribed by the Code, needs some modification, to meet the extraordinary circumstances in which we now find ourselves. But this modification is not the business of the Courts. The Code is plain and positive, and, as a general rule, experience proves that it is wise and just. And if the anomalous state of things produced by emancipation, has, as we think, in the main, true, made the rule, to some extent, unjust and inequitable, the remedy is with the Legislature, and not with the Judiciary. A Court has no power to mould the rules of law to suit the changed circumstances
2. If one die without a will, the law provides how his estate shall be distributed, and nothing is a will that does not comply with the requirements of the statute. A memoorandum of the intestate, no matter how clearly proven, his dying words, in the presence of all his family, no matter how just, unless it can be proven as a will, can receive no notice from the Courts.
To allow these memoranda, kept by the testator, perhaps with great care and fairness, to point out how his estate shall be distributed, would be to repeal the whole law on the subject of wills and the distribution of estates. The deceased died testate, or intestate. If the former, his will must be probated according to law. If the latter, then the law points out the mode of distribution, and his wishes have nothing to do with it.
Suppose the book kept by him had said in express language, “ I wish my children to be equal at my death, and that my estate shall be divided in kind, giving each of the heirs not advanced, specific articles, such as the advanced children have gotten, and this without regard to the value of the articles.” This would clearly be a will. It would dispose 6f his property differently from the disposition made by law.
Shall we do, by inference, that which we could not do, had the testator directed, in words, not executed as a will? Clearly not. The statute prescribes the effect of these memoranda of advancements. 1st. They are evidence of the fact of the advancement. 2nd. They are prima faeie evidence of its value. But they are not a will,’and they can have no force as a will, because not executed as the law requires: Code, 2539.
3. The Code, section 2542, provides that the advancements shall bear interest from the time of the first distribution. This is directed to take place in twelve months from the administration. Clearly, therefore, the first distribution is the time fixed by law for estimated the value of the advance
Judgment affirmed.
