Watts v. Baker , 78 Ga. 622 ( 1887 )

Bleckley, Chief Justice.

Baker, the elder, died testate, leaving Dr. Watts his executor. The executor, before fully administering the will, died intestate, and his widow, Mrs. Watts, administered upon his estate. An administrator de bonis non with the will annexed (one of the testator’s sons) was also appointed upon the estate of Baker. A settlement, total or partial, took place between the administratrix of the deceased executor and the administrator da bonis non of the testator, in which the former turned oyer to the latter certain notes as the property of the testator’s- estate, and on receiving these notes, the latter gave to the former a receipt in full. Present at the settlement and at the giving of this receipt were most of the testator’s children, the principal legatees under his will. The children afterwards brought their action of complaint against the administratrix of the executor for an alleged devastavit by the executor in his lifetime. The plaintiffs obtained a verdict, and the defendant made a motion for a new trial, and a new trial was refused.

1. The court ruled that the receipt in full might be explained; and there was in the evidence an explanation tending to show that the settlement was confined to assets of the original estate which came to the hands of the administratrix, and that it did not include any inquiry into the actings and doings of the deceased executor touching other assets. If that was the scope of the settlement, the effect of the receipt ought to be restricted accordingly. The words “ in full,” etc. ought to be interpreted with reference to the subject-matter of the settlement on which the instrument was founded. Assets of the testator’s estate which came to the hands of the administratrix of the executor, and assets which the executor had wasted in his lifetime would be wholly different subject-matters. The rule of accountability on the part of the administratrix would not be the same as to both, but different as to each. For the former class of assets, if not duly surrendered, she would have to account personally out of her own estate, and for the latter in her representative capacity out of the estate of her intestate. In receipting to her touching either, it would be very proper to describe her as administratrix, and a receipt so describing her might embrace both. This being so, the receipt now in question is ambiguous; and parol evidence is admissible to explain all ambiguities, latent and patent. Code, §3801. For some authorities touching the explanation of receipts, see the citations under section §3807 of the code. Under the facts of this case, the receipt in full given by the administrator de honis non with the will annexed, to the administratrix of the deceased executor, was open to explanation, and was not conclusive upon the legatees in a suit by them against the administratrix to compél an accounting for an alleged devastavit by the executor.

2. The court admitted evidence going to show a rapid accumulation of property by the executor whilst in charge of the testator’s estate. This was error. As the accountability of the executor was the same, whether his fortune improved or not whilst he was in the trust, evidence to show that it did improve was irrelevant and inadmissible.

3. There was no error in holding the husband of one of the plaintiffs a'competent witness to testify in their behalf. He had no interest and was not a party. Though he took a small specific legacy under the will, this was in nowise put to hazard by any possible result of the suit. In civil cases, husband and wife may testify for each other. Code, §3854. A witness is not incompetent because he is the husband of a legatee who is one of the plaintiffs, and because he takes specific legacy under the will, he being no party to the action and his legacy not being in question.

4. We have no doubt that the court misconstrued the will, touching the interest which the testator’s widow took in the $1,000 cash, offered to her and accepted by her in lieu of dower. There is by the will no express limitation of the widow to a life estate, either in the money or the property, and this being so, a general presumption obtains that a conveyance of the fee was intended. Code, §2448. As to the property which the will directs to be sold on the death of the widow and the proceeds divided, this presumption is rebutted by clear and necessary implication, but we cannot believe that by the term “property,” in this part of the will, the testator intended to embrace money, for such a construction would convict him of an absurdity — the absurdity of directing the sale of money in order to get its proceeds for division amongst his children. In announcing our ruling upon this , point, we copy the terms of the will, just as they appear in the instrument, as to everything essential. The testator having devised to his wife for her sole use and benefit during her natural life certain lands, with remainder to his minor son in fee, disposed of a certain horse in the same way, and then added: “I give, bequeath and devise to my wife in final extinguishment of her right of dower in my real estate, free for her own use and benefit, $1,000 cash and so much household and kitchen furniture as she may need for her immediate housekeeping, two good mules or their equivalent, one cow and calf, and one year’s support. At the death of my wife, all the property given in extinguishment of her dower is to be sold, as hereinafter directed, and the proceeds to be divided among my living heirs, to-wit (naming his children), share and share alike.”

This bequest of one thousand dollars cash was absolute in the wife, she having accepted the provision offered her in lieu of dower, and the testator’s children took no interest by the will in the money, but a remainder in the property only.

We have studied the facts as carefully as the law, involved in the whole case, and the result is that we reverse the judgment refusing a new trial, with direction as follows : Let the verdict stand for the amount of the note not already written off, provided the plaintiffs will write off all the rest of the recovery.

Judgment reversed, with direction.