Harrison's Executors v. Cordle , 22 Ala. 457 ( 1853 )

GIBBONS, J.

The record before us presents no question as to the legal effect of tbe plaintiffs’ evidence before tbe jury. It seems to bave been received on tbe trial below without objection, and no question of law raised upon it, as to whether it showed or tended to show a legal liability against the executors of Benj amin Harrison, deceased. Confining ourselves, therefore, entirely to the points presented by the record, we proceed to notice the matters assigned for error.

The defendants below offered, for the purpose of rebutting the plaintiffs’ proof tending to show an indebtedness to Mrs. Cordle, one of the plaintiffs, a memorandum book in the hand-write of the said Benjamin Harrison, deceased, made a short time before his death. This piece of evidence, on motion of the plaintiffs, was excluded by the court. In this there was no error. To have admitted it, would have been to violate a familiar principle of evidence, that a party cannot manufacture evidence for himself. This memorandum, made by-the deceased, in his life time, in the absence of the plaintiffs, and without their knowledge, was no more evidence in the hands of the executors on the issues before the jury, than it would have been in the hands of the testator, if he was the actual defendant in the cause.

Not so, however, as respects the other proof offered by the defendants and rejected by the court. The proof of the plaintiffs, as set out in the bill of exceptions, tended to show an indebtedness on the part of the testator in his life time to Mrs. Cordle, one of the plaintiffs, on account of money or property which he had given her or promised to give her, by way of advancement, or for natural love and affection. As to the competency of this proof to establish an indebtedness against the estate, for which assumpsit would lie, as above remarked, we express no opinion, because no question is presented for our decision upon that subj ect. But conceding, for the present, that all the plaintiffs’ evidence was competent under the issues joined, it was defective in not fixing any amount by which the jury could be guided in assessing the damages. It was, we presume, for the purpose of supplying this defect that the testimony of Bradley was introduced bjr the plaintiffs. Other witnesses on the trial had testified, that the testator had declared that Mrs. Cordle, one of the plaintiffs, should have as much as Mrs. Anderson, another daughter of the testator; and that he intended to give to all of his children alike. The only relevancy, then, that we can see in the testimony of Bradley, was to fix the amount that the testator had given to Mrs. Anderson, or to her husband. The testimony elicited from Bradley, by the defendants, tended to show that the testator had given money and property to the plaintiffs by way of advancement, and supplied them with the means of living for a series of years. Conceding the competencjr of the plaintiffs’ testimony, this evidence was undoubtedly competent by way of rebutting proof to all, or nearly all, of the plaintiffs’ evidence. It manifestly tended to diminish the balance in the testator’s hands, in order to equalize the advances made to each child. The plaintiffs’ proof tended to establish this balance at a certain point. This proof tended to reduce it, and was good as rebutting proof.

For this error, let the judgment of the court below be reversed, and the cause remanded.

LlGON, J., did not sit in this case.