Executors of Nolan v. Bolton , 25 Ga. 352 ( 1858 )

By the Court.

Benning, J.

delivering the opinion.

What was it that the testator meant the legatees to " be charged with and account for.” The defendants in error5 say, that it was only gifts — advancements; that it was not loans.

His words are: “ it is my will and desire that at the division of my property, each one shall be charged with, and account for, in said division, 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.”

First, let us take the words, ending with “me.”

“ All money or property they have received from me,” is an expression which, taken by itself, is broad enough to include all money or property that had proceeded from the testator to the legatees, whether it had proceeded as a gift, or as a loan. In a gift, the thing given, is “ received” by the donee; in a loan, the thing loaned is “ received” by the borrower. Received, may be equally predicated of both a gift and a loan.

It is the clear import, then, of the words ending with “ me,” that the legatees were to account for whatever they had received from the testator, whether they had received it as a gift, or, as a loan. It follows, therefore, that they must account for whatever they received from him unless the subsequent words, by an import at least equally clear, relieves them from the duty of accounting for some part, or the whole, of what they may have so received.

Let us then go to the subsequent words. Do they, to any extent, relieve the legatees from this duty ?

Those words are “so as to make them share equally in the property to be divided and in advances.”

The word advances means, say the counsel for the defenants, gifts — advancements ; and does not mean loans; and, thence it follows, they insist, that the testator, notwithstanding the breadth of his first words, could not have meant the legatees to account for loans.

But, in the first place, the word, “ advances,” when taken in its strict legal sense, does not mean gifts — advancements-, and does mean a sort of loan; and when taken in its ordinary and usual sense, includes both loans and gifts — loans more readily, perhaps, than gifts.

" Advances, contracts, are said to take place, when a factor or agent pays to his principal, a sum of money, on the credit of goods belonging to the principal, which are placed, or are to be placed, in the possession of the factor or agent, in order to reimburse himself out of the proceeds of the sale.” Bouv. Law Die. This gives the strict legal sense of “ advances and according to this, advances are loans, and nothing more.

"Advancement, is that which is given by a father to his child, or presumptive heir, by anticipation of what he might inherit.” Id. This is the strict legal sense of advancement; and it shows that advancements, and advances, when both words are taken in their strict legal sense, mean quite different things, the former, gifts; the latter, loans.

In ordinary usuage, what is the sense of “ advances ?”

It is in every body’s mouth to say, that a man obtained an advance on his cotton, or on his watch, or on his own note, and the meaning is, that the man was accommodated with a loan on the security of the cotton, the watch, or the noie.

“ Advance,” “ 6. A giving before hand; a furnishing of something, on contract, before an equivalent is received. 7. A furnishing of money or goods for others, in expectation of reimbursement; or the property so furnished.” Webster’s Die.

In ordinary usage, therefore, the word, advances, includes loans, and, perhaps, gifts. The counsel for the defendants, however, admit that it includes gifts ; they say, it includes nothing else.

Whether, then, we take .the word according to its meaning in law, or, according to its meaning in common usage, we must say, that the word includes loans as well as gifts.

More ; we must say the same, if we take the word in the sense in which, according to the testimony, the testator actually used it.

According to the testimony, he meant the Bolton children to account for the money represented by the " bundle of old papers.” Now, admit that the money represented by those old papers, was loaned money, as the counsel for those children say, then, it must follow, the testimony being the criterion that he meant the children to account for loaned money.

And, in the second place, suppose it true, that the word, advances, as used in the will, does mean advancements, and does not mean loans, yet is it true, that it thence follows necessarily, that so much of the meaning of the previous words, as requires loans to be accounted for, is cancelled ?

I think not.

The word, advances, is found in connection with the words, "the property to be divided,” the whole expression being, "so as to make them share equally in the property to be divided, and in advances.”

Is not the money the testator had due him on loan, to be included in the words, “ the property to be divided ?” They are certainly capable of including such money.

I think so.

And then, is it the dictate of reason, that the testator should wish his children to account for what was theirs, advancements, rather than for what was his, loans.

The testator may well have meant by the two terms taken together, " the property to be divided,” and " advances,” to cover all the ground which he had previously covered by the words, “ all money or property they have received from me.”

[1.] Upon the whole, then, we think, that the subsequent words do not as clearly import, that loans were not to be accounted for, as the prior words import that both loans and gifts were to be accounted for; and, consequently, we think that the subsequent words did not neutralize the prior words. The prior words not being neutralized, it follows, that they must have their full effect. And to have their full effect, the Holton children must account for loans, as well as for advancements. We think, they will have to account for both.

This being our conclusion, it must follow, that we think the following charge erroneous.

“ Further, the Court charges you, that the time the will was written, if the notes remained debts up to that time, they were not changed by the testator in the will from a debt to an advancement.”

What the Court meant by this charge, was, that if what the notes represented in the beginning were debts, and if those debts remained debts up to the making of the will, (that is, if they were not changed by the joint act of the testator and Bolton, into advancements,) the children of Bolton, were not bound to account for them.

If the testator meant those children to account for them, whether they were debts or advancements, as we have cometo the conclusion that he did, then the children were bound to account for them, whether they remained in the form of debts, or were changed into the form of advancements. That the testator had the right to give his bequests on what terms he • pleased, nobody will dispute. He might, therefore, give them, on the terms, that the legatees should account for money lent to them, or to their father.

What has been said, sufficiently disposes of the other charges, and the.refusals to charge.

A single question remains, though it is not a question which the case,in the view that has been taken of it, requires to be decided.

Was the parol evidence ad missible ? Even if it was not admissible, there ought to be a new trial, as there was an error in the charge. But we are strongly inclined to think, that it was admissible.

In the view we take of the will, it is not true, that this evi-. dence contradicted the will. The words of the will were broad enough to cover both loans and advancements, and to require an account of both. The parol evidence showed, that what the notes represented, was to be accounted for, whether what they represented, were loans or advancements. Here was no conflict between the parol evidence, and the words of the will.

Nor is it true, as we strongly incline to think, that the evidences being of the sayings of the testator, made it inadmissible. The sayings were uttered at the time of the making of the will, and in connection with the act of making the will. They, therefore, were a part of that act, a part of the r.es gestee. So I think. Then, they were sayings against interest, if the counsel for the defendants are right in contending that they goto show, that the notes represented advancements.

Advancements are gifts; and it is less to a man’s interest, to admit a thing to be a gift, than it is to admit it to be a loan •even though as a loan, it may be barred by the statute of limitations.

There can be no motive, in a matter of this sort, for a testator to say what is not true. If he wants to withhold hiss property from any one, he can do it, with or without a reason.

Judgment reversed.