West v. Bolton

23 Ga. 531 | Ga. | 1857

By the Court. —

Benning, J.

delivering the opinion.

The Court charged the jury, that the children of Mr. and Mrs. Bolton, were not bound to account for advancements made to Mr. and Mrs. Bolton. Was this charge right ?

The words of the will are, “ each one shall be charged with, and account for, all money or property they have received from me, so as to make them share, equally in the property to be divided and in advances.”

By the words “each one,” “they,” “them,” the testator, no doubt, meant, the persons named as legatees, in the third item of his will. Among those persons, were “ the children of” his “deceased daughter, Polly Bolton.

It follows, therefore, that according to the words of the will, those children were bound to account for money and property, which they had received from the testator, if they had received money and property from him.

Their parents had received money and property from the testator. Was that, a receipt of the money and property, by them ?

We think, that, in law, it was.

[1.] An advancement to the parent is, inlaw,an advancement to the child. The statute of advancements, is amendatory of the statute of distributions, and, indeed, is adoptive of that statute. Consequently, it is to be construed in connection with that statute. And that statute says this — “And1 in case any of the children shall die before the intestate,, their lineal descendants shall stand in their place and stead.” Cobb’s Dig. 291, 293. But, if, in such case, the lineal descendants of any of the children, stand in the place and stead of the children, then, it must be true, that what the children received, they received, what the children were-advanced, they were advanced. In other words, it must be true, that an advancement to the parent, is in law, an advancement to the child.

This is the result of a strict and literal interpretation of the language of the will. And there can hardly be a doubt, that it is a result, that subserves the intention of the testator. And certainly, we may be justified in holding that a testator-means by words denoting an advancement, any thing that is,. in law, an advancement, if in so holding, vve accomplish his intention.

We think, therefore, that the charge of the Court, was-erroneous.

[2.] Was Dyson’s testimony admissible; that is to say, were the sayings of the testator, going to show, that he had made advancements to Charles L. Bolton, admissible ?

These were not “ vague” sayings. The notes, &c.,to which they referred, were lying before the speaker, at the time of the sayings.

Now the sayings were admissible, if they were against the interest of the speaker. And, Ave think, that they Avere against his interest. It is true, that the notes, &c. were out of date. But a contract being out of date, does not make the contract^ extinct. It cannot be said, therefore, that a contract out of date, is a Avorthless thing. If these notes, &c., then, represented contracts, debts, they Avere not' worthless, though they Avere out of date.

But if they represented advancements, they Avere utterly worthless. They could not in that case, have been collected, if in date. It folloAvs therefore, that Avhen the testator, speaking of them, said, that they represented advancements, he spoke Avhat Avas against his interest.

The cases read from the Pennsylvania Reports, Avent upon the ground, I think, that the sayings they refer to were too vague, too uncertain, failing as those sayings did, to specify and identify, the property referred to by them, as that Avhich had been advanced. See 4. Whor. 138.

The cases from the Connecticut Reports, seem to be in favor of the admission of such sayings. 20. Conn. 320. 6. Conn. 356.

[3.] That notes, &c., were taken by the testator, from the son-in-laAV, Mr. Bolton, for the sums advanced to Mr. B., is matter from Avhich, a presumption arises, that those sums Avere intended, not, as advancements, but as loans. This presumption, hoAvever, is not a conclusive one, it is subject to be rebutted. And the question, Avhelher, it has, or has not, been rebutted, is a question for the jury.

The charge of the Court being, as Ave think, erroneous, we must give a new trial.

Judgment reversed.