44 Fla. 704 | Fla. | 1902
In a cause in chancery pending in the Circuit Court of Leon county, wherein Lizzie I>. Walker as the executrix de 'boibis non of the will and estate of Alfred A. Fisher, deceased, was complainant, and Fannie T. Fisher, William H. Ross and George G. Lyon were defendants, an order was made referring the cause to a master requiring ail creditors of the deceased A. A. Fisher who had seasonably presented their claims to the executor to file them with the -master, authorizing the parties to the .suit to contest the validity of any claim so filed, and directing the master to inquire and report whether or not contested claims were proj>er charges against the estate. Appellants filed a claim which was contested by the defendant Fannie T. Fisher, and after having taken testimony as to its validity the master found it to be a proper charge against the estate, and so reported to the court. Mrs. Fisher filed exceptions -to the report, which wqre sustained, and an order was made September 23, 1896, decreeing that the claim of appellants was not a valid claim against the estate. From this decree an appeal was taken to this court.
It appears from the evidence that William EL Ross, who resides in Mobile, Ala., was a nephew of the deceased, who resided at Tallahassee, Fla. In a letter written December 29, 1887, by Ool. Fisher to Mr. Ross, he states “last Christmas makes the eightieth I have seen, and I have no right to expect much longer to live. I wish to talk with you more about my business and wind up my affairs on earth, .so that I can depart contentedly. I have not got along so well this year as I anticipated. I have
“Tallahassee, Fla., Deer. 30, 1887.
Due Wm. H. Ross & Co., Four Hundred, twenty and 00-00 dollars, borrowed money
$420.00 A. A. FISHER.
$250.00 Tallahassee, Fla., Jany. 18th, 1889.
Due to Wm. H. Ross & Co. Two Hundred and fifty and 00-00 dollars, borrowed money.
A. A. FISHER.”
Col. Fisher died November 6, 1889, and on February 18, 1890, Wm. H. Ross & Co. presented the due bills to his executor for payment. Regarding these transactions Mr.
On February 3, 1888, Col. Fisher executed his last will and testament, by which, after directing that his just debts be first paid, he gave, devised and bequeathed all his property real and personal to his wife Fannie T.
Mrs. Fisher testified that “Win. H. Ross and George G. Lyon visited Tallahassee, Florida, to- see their late uncle, Alfred A. Fisher, who was at the time a very old' 'man and in failing health. This was to the best of my recollection in the spring of 1889. Tlmy came out to-his house to see him. During the conversation my husband spoke to them about the moneys they had advanced him, and Mr. Lyon told him that what he had sent him was intended as a present, and was never considered as a debt. Mr. Ross also stated that'he did not intend to-claim what he had advanced as a debt, and that when lie-returned home he would destroy the due bills which his uncle had given him.” Mr. Ross denied having such a-conversation. He states that while in Tallahassee with Geo. G. Lyon on a visit to their uncle, the latter intima
It is contended that the evidence shows that the moneys advanced Col. Fisher by Wm. II. Ross were advanced, not as a loan, hut as a gratuity; or, if as a loan, were only to be repaid upon the payment of a certain claim that Col. Fisher was pressing against the United States, or by devise to Boss in Ms last will and testament. These contentions were made grounds of exception to the master’s report.
A careful consideration of the evidence leads us to the conclusion that the moneys advanced by Mr. Ross Constituted a loan, and not a gift. Due bills expressing the consideration as borrowed money were given. Mr. Ross testified that the transactions were loans; there is nothing in Col. Fisher’s letters indicating that he regarded them otherwise, and Mr. Ross’ testimony as to the circumstances attending them is not contradicted. Mr. Ross’ letter of December 30, 1887, shows that though he ■did not expect to press his uncle for the money repre-' sented by the first due bill, yet he did expect the money to he returned when his uncle was able to return it. Col. Fisher’s reference to his claim against the United States in his letter dated December 29, 1887, shows that he expected to return the money in a short time if he could get his claim against the United States settled at the then .-session of Congress, as he hoped to do.
Without further commenting on the evidence, which we have set forth at length, and which speaks for itself,
Mrs. Fisher testified that during a conversation with her husband, she thinks in the spring of 1889, Mr. Ross stated that he did not intend to claim what he had advanced as a debt, and that when he returned home he would destroy the due bills which his uncle had given him. Mr. Ross, it is true, denies that any such conversation occurred, but we must assume in Support of the ruling of the' court below that the judge gave credit to Mrs. Fislfor ither than to Mr. Ross, and as it was his province to sen conflicts in the testimony, we see nothing which justifi(V us in overruling his conclusion upon this question of fact.1 The conversation testified to by Mrs. Fisher does not, however, constitute in a law a release, discharge or gift of fhe debt due by Col. Fisher. No consideration for Ross’ «¡se appears, no receipt for the debt was given, the evib nces of the debt—the due bills—were neither canceller!, destroved nor delivered to the debtor. In or-t * der to constitute a valid gift the transaction must be consummated by delivery of the thing given. Horn v. Gartman, 1 Fla. 73; Powell v. Leonard, 9 Fla. 359. Where the thin$ given consists of a debt due the donor by the donüít. -nTul no receipt is actually given, no credit entered, and where 'he evidence of the debt is not cancelled, de
The only question remaining relates to the period from-which interest should be computed ripon the debt.. Tiiie master allowed interest from the dates of the due/bills respectively. In this he was in error. No time oir payment was specified in the due bills, nor was any mention-of interest made therein. ,It appears to the coui’t from the written correspondence between the parties Í at the time of the loans and giving of the instruments, tlj'at they did not'regard the debts as due immediately or 1[hat interest was to be computed upon them, certainly n/rt until after demand made for payment. No demand flv payment thereof -was made until the due bills were presented to the executor, February 18th, 1890. Interest should be allowed from that date. Milton v. Blackshear, 8 Fla. 161.
The decree adjudging the claim of appellants ii*< (n be