Weems v. Andrews , 22 Ga. 43 ( 1857 )

By the Court.

Lumpkin, J.

delivering the opinion.

In the view the Court takes of this case, there is not much difficulty about it

The testator in his lifetime advanced to his three sons, certain unequal portions in real estate. He fixes its value, and directs thatit be counted in the final distribution of his estate, not only for the purpose of equalizing this three sons with the rest of his children, but with each other.

It has been questioned whether advances made before the making of a will, will adeem a legacy or a residuary portion given by the will. The case of TJpton and Prince, reported in Tern. Talbot, p. 71, decided the affirmative of this question; and this precedent has not only never been overruled, but is cited by Williams on Executors, and in other text books and adjudicated cases with, approbation. In Rogers vs. French, 19 Geo. Rep., 316, this doctrine was recognized. In that case the question was, whether $500 advanced to one of the children of the testator, several years before the making of his will, should be deducted from the portion of that child under the residuary clause of the will. We held that it should not, upon the ground, that the proof showed, that it was not so intended, by the testator, and the Court there laid down the rule, that in all cases the question of whether advances made before or after the making of the will, should be counted, was one of intention.

In the case before us, there can be no doubt as to the intention of the testator. It was plainly declared in the first deed made some eleven years before his will was written, and Repeated in each of the two deeds made eight years thereafter, to the other two sons, some three years before the will was written: — thus establishing the settled purpose of the testator as to this point.

Had he simply made deeds to each of his three sons, to these several tracts of land, although of unequal value, and said nothing more, and then have given them equal portions of the residuum of his estate by his will, in the absence of any other testimony these would have been considered gratuities, merely, to his three sons. As it is, they cannot be so held in the face of the express declaration of the father to the contrary.

When we reflect that the law does not favor double portions to those standing in the same degree of relationship to the deceased ancestor; and that our statute, with regard to advancements and distributions, is founded in the plainest principles of natural justice, we- cheerfully affirm the judgment of the Circuit Court.

Judgment affirmed.