Hargroves v. Redd , 43 Ga. 142 ( 1871 )

McCay, Judge.

1. The Circuit Courts of the United States have, under the statutes organizing them, no probate jurisdiction. They have no machinery for recording a will, issuing letters and directing and supervising the administration. Any judgment they could give in the premises would only be collateral, and not final. This is, as we understand it, the settled rule, and the Circuit Courts uniformly decline the jurisdiction.

2. It appears, by the record, that the admission sought to be withdrawn was first made in previous trials of this case. It may fairly be presumed that the propounder has rested on this admission, and has not at hand the proof necessary to supply it. We will not say such an admission may not be withdrawn, but full and timely notice ought to be given— such notice as would give a reasonable time to the other side to supply the gap its withdrawal makes in his case. This withdrawal was proposed to be made during the trial. We agree with the Judge that this was too late — the notice too short. True, the Court might have continued the case, but both the other side and the public have a right that a speedy trial shall be had, and that the time and expense already devoted to the case shall not be lost.

3. It seems very clear to us, that there is nothing in the change of circumstances, to-wit: in the. emancipation of these slaves, that will justify the position taken by the plaintiff in error, to-wit: that the intentions of the testator cannot be carried out. It is very evident that the direction to carry the slaves out of the State, was only a means of securing their freedom, and wholly collateral to the leading idea, to-wit: their freedom. The bequest is to them as freemen, not as residents out of the State; and, as they have become free by the laws, without the removal, we think the removal unnecessary : See the case of Green vs. Anderson, 38th Georgia, 655. It has been assumed in the argument of this case by the plaintiff in error, that it was a general rule of law, that a total change in the eireumstances of a testator, is a revocation of his will; but this is far from being true. True, there is a heading of this kind in most of the books upon wills, but it will be found that it has a very confined scope. Indeed, it seems to be confined to that change of circumstances produced by the marriage and birth of a child, or to the marriage of a female testatrix : Code, 2441; 1st Redfield on Wills, 292, 302. There is not a case to be found, as I believe, in which a change in the amount of the testator’s property has been held to revoke his will. Nor has it ever been held, except in the theories of some old writers, that a change in feelings of friendship, or of good or ill will between the testator and the legatee, can be used as the basis of an implied revocation. The law not only points out how wills shall'be made, but throws many restrictions around the revocation of them. Experience has shown that testators, surrounded as they often are by contestants for legacies, need protection in this respect; and it has been thought wise, by by the lawmakers, to require distinct proof of revocation. The doctrine of implied revocation has been more and more limited, until it is now confined to a few specific cases, such as marriage or the birth of a child, under circumstances showing that, at the date of the will, the testator did not contemplate such an event, and for which event, he, by his will, made no provision.

4. The argument of this case has turned mostly upon the effect of the Act of 1859 and the Code, upon this will. By our laws, previously to 1859, a will directing slaves to be sent out of the State and then emancipated, was good; and bequests to them under such provisions were held good : 16th Georgia, 496. In 1859, an Act was passed providing that emancipation, in or out of the State, by will, was illegal and the will void. So, also, old Code, section 1874. The emancipation of the slaves, as the result of the late war, and the consequent change of the Constitution of this State and of the United States, have rendered this law, as well as the Act of 1818, obsolete. Thomas made the will now propounded for probate, in 1852, when, by our law, such a will was a valid and good will. He died in 1867, after the Act of 1859 had become obsolete, after the slaves had been emancipated, after they became capable, as freemen, of taking, in this State, the bequests of the will.

It has been argued, that though this will was a good will when made, and though it might lawfully take effect at the death of the testator, yet, as such a will was illegal and void under the Act of 1859, it was by this Act revolted, and cannot now be set up as a will unless republished. We fully considered this point when this case was before us, at the December Term, 1869 : 40th Georgia, 18. We have allowed that decision to be questioned, as provided by section 204 of the Code, and we have listened, with open ears, to the able and elaborate arguments of the plaintiff's counsel, against the view we then took of the law as applicable to the facts of this case. But we are-constrained to adhere to the position we held in that decision, to-wit: that, as this was a lawful will when made, and a lawful will when the testator died, it may lawfully be probated, notwithstanding the Act of 1859, which was passed after the will was made, but became obsolete before the testator died.

The very meaning of the word revoke, involves a change of mind in the testator. A careful consideration of the different acts which the books and the statute treat as evidence of revocation, will show that the idea of a change of mind of the testator, is a fundamental one in questions of revocation. There is some act of the testator, some exercise of his will, by which he either expressly recalls his previous disposition, or from which the law implies that he intended so to do. I do not think a case can be found, where a will has been held to be revoked by anything else than the testator’s own act.

The cases of making an inconsistent will, or of tearing and obliterating, are plain, and the evident foundation of the rules regulating the effect of marriage, birth of children, etc., is that, in such cases, the testator has done an act from which it may be fairly inferred he intended to change the disposition of his property. It is true, such acts are now, by our statute, made acts of revocation and conclusive acts; but at common law, the foundation of them was, that when one had thus, by his ads, placed himself in such new relations, there arose the presumption that he intended to revoke, recall, his former will.

By our Code, sections 2434, 2442, wills may be revoked, either by an express act annulling the will, or by making an inconsistent will. It is provided, also, that marriage of the testator or the birth of a child to him, subsequent to the making of the will, shall be a revocation. I greatly doubt if there be, under our law, any other revocations than are provided for; and these are all, either express acts, directly revoking, or ads from which the law conclusively presumes the testator intended to revoke. For if, in any authorized way, he shows that he did not so intend, the revocation does not take place. So far as I have been able 'to find, no act of others has been held so to alter the presumed motives of the testator as to furnish legal data for a presumption of revocation. Though the bitterest feuds arise between the testator and his legatees, though great changes take place in the property of the testator and in the wants of the legatee, though all the reasons for the bequest may fail, yet the law does not undertake, except in the instances specified, to make for him a change in his dispositions, which he has not himself indicated in some legal way.

I am aware that it is often said a will is revoked by a “ change in a man’s circumstances,” and “ by an alteration of his estate.” But though these phrases are used in the books, it will be found, on examination, that they have a very limited application. The only “change of circumstances,” given as instances of this kind of revocation, is marriage and birth of a child, or marriage alone of a female. So far as I can find, these are the only cases. Swinburne, part 7, section 15, says: “ But no man is presumed to have revoked his testament. Insomuch that if a man live forty years after he has made his testament, yet is not the testament presumed to be revoked by the course of so long time? Though his wealth and substance increase, yet is not the testament revoked ?” As to “ alteration of estate,” this rather has reference to specific devises, of particular real estate. As a will is a conveyance, it was held that, if at any time before the testator dies, the nature of his title to the estate changes, the devise is revoked: 1st Redfield on Wills, 332 to 342. And this is the case referred to by the plaintiff’s counsel in Roll’s Abridgment, 617, upon which so much stress has been laid, and which our Brother Russell, has taken so much pains to have properly translated. “If a man had devised a use before the statute of 27th Henry, 8, which devise was revolted by the statute, because the use was transferred to the possession, yet, if after the statute of 32 Henry, 8, concerning devises, he had allowed the same without writing, this had been a new publication.” And, also, the case in Anderson’s Reports, page 7, when one devised laud before the statute of uses, the statute is treated as revoking the devise.

But, both these cases, as will be observed, are not cases of the revocation of wills, but of devises, and are nothing more than the common case put in the books when the title of the testator to land had altered, after the making of the will, and before his death. The decisions are founded on the common rule, that after-acquired real estate does not pass by a will. A change in the title, from a use to a legal estate, was held to be a new estate, and it did not pass by the will without a new publication. That the provisions of a will have, by a change in the law, become illegal, is not an act of the testator, nor does it furnish any ground for presuming any change of his intention. Nothing is more common than for men to make illegal bequests; men are constantly making wills in ignorance of the law. It is true, that a man will not be presumed to violate the law, nor to intend to do so. But if he have intended a particular act, and have expressed that intention in writing in the form of a will, and he keep the paper by him, executed with all the forms of law, unrevoked by any act of his, it is saying a great deal to say that he is to be presumed to have changed his intentions, as expressed in his will, because those intentions have become illegal. He may not have known the change of the law; he may have thought his will was not obnoxious to it; he may have thought the law would be changed. So long as he keeps by him, expressed according to the required forms, his intention, and does no act himself which amounts in law to a revocation, the inference is almost irresistible that he intends just what his acts indicate.

Had this testator died while the Act of 1859 was of force, and had this will been presented to the Ordinary for probate, would the heirs-at-law have thought of setting up that it was 7'evokedf The objection would have been, not that the intentions of the testator had changed, but that his intentions were illegal, and could not be set up. The will would have been void, not because it was not the expression of the testator’s wishes, but because those intentions were illegal, and the Courts could not permit them to be carried into effect. I do not think, therefore, that it is a proper use of language to say that the Act of 1859 revoked wills obnoxious to its provisions. It made wills emancipating slaves, in the State or out of it, void. But what is a will? When does a paper become a will? Until the death of a testator, his will is under his own control. It gets its whole vitality from his death. We inquire into his surroundings at the making of it and during his life, to find out whether he made it, what he intended by it, and whether, at any time after it was made, he revoked it; but it never becomes a will, or has any practical, legal effect as such until the testator has died — has, by having it unrevoked at his death, said, by his failure to change it, “ That is my last will.” Until then, it is a paper of his own, inchoate, ineffective, subject entirely to his own volition. It is his private paper, the expression of his intentions for the future, which he may or may not alter, at his own pleasure. It is not a paper that the law can operate upon, since it has no validity until, by his death, it becomes his last will. It is like a deed, written, signed and sealed, but not delivered. It may or may not ever see the light, and it depends for its validity on the law at the time of his death, just as a deed depends for its validity on the law at the time of its delivery. If the Act of 1859 is to be considered as going into the cabinet of the testator, and making the papers, deeds and wills, there laid away to be used or not used, as the maker of them may determine, some very strange results would follow. By the Act of 1818, Cobb’s Digest, 991, slave property intended to be emancipated contrary to law, was subject to sequestration. Will it be contended that a deed, yet in the custody of the maker of it, or a will before the death of the testator, emancipating slaves, rendered the property liable to sequestration ? The old Code, section 1875, declares that every such will, testament, deed, contract, agreement, etc., shall be null and void; and section 1876 makes any person violating, or attempting to give effect to any instrument violáting said provisions, liable to a penalty of one thousand dollars. If the statute goes into the private receptacles of the testator, and operates upon his papers lying there, which he has not yet, by his acts, made or attempted to make effective, and makes them void, would he not also be liable to the penalty, for having and keeping such papers by him? Such a result would be absurd. And yet it is the logical deduction from the proposition, that the Act of 1859 operated upon this paper, as it lay in the trunk or safe of the testator, subject at any time to his volition, and made it illegal and void.

In the sense of the statute, the words will, deed, testament, etc., evidently mean only papers to which the maker of them has given his final assent, and not papers he still has in his own custody, and which he may or may not deliver, or die leaving unrevoked. The authorities on the subject of wills abundantly sustain this view of the matter. The making of a will is but the inception of it, and it doth not take effect until the death of the testator: 4 Co. Rep., 61 b. The case of Sutton vs. Chenault, decided by our own Court, 18th Georgia, 1, turns upon this very principle. The paper then in question was held no will, because the law, at the death of the testator, required a will to have three witnesses, and the Court say, however, it was lawfully executed when made, yet it did not become a will until the testator died. Until the death of the testator, the paper expressing his wishes is not a will; it is a mere inchoate act, which may or may not be a will, accordingly as the testator may or may not alter, or revoke, or destroy it. He is free to do this at any time. He cannot, by our law, even bind himself in it not to revoke it. Whenever it becomes irrevocable, it is no longer a will: Code, 2434. Experience has, however, found it necessary to limit, within certain fixed bounds, the modes in which wills may be revoked.

It will be found, I think, that the classifications of our Code pretty nearly, if not quite, exhaust the subject: 1st. Express revocations by writing: Section 2435. 2d. Eevocations by inconsistent wills, which to be effectual must ultimately take effect: Section 2435. 3d. Eevocations by acts mutilating, erasing or destroying the paper executed as a will, in which case the question of intention arises, and evidence of declarations is admissible. 4th. Revocations by change of domestic relations, which, by our law, is confined to two specified changes, to-wit: marriage or the birth of a child subsequent to the making of a will in which no provision is made in contemplation of such an event: Section 2441. If there be any other mode of revoking a will it does not now occur to me. Wills may be void for want of proper execution, for illegality, for disability of the testator, and legacies may be adeemed and set aside for fraud and mistake, and even imposed upon the testator by contract. But wills, as such, must be revoked in some of the ways mentioned. The case now under consideration is rather a question of the revocation or failure of a legacy than of a will. Without doubt, here is a good will, even without the provision for the negroes. The bequest to his sister would remain even if the legacy to the negroes falls. It may be fairly said, too, that the emancipation clause is not necessary to sustain this legacy. What that proposed to do has been done without any help from this clause. The negroes are free even if that clause be void.

5. The point of this case that the legatees, though capable of taking the legacy at the date of the will, under its provisions, and though capable of taking it at the death of the testator, without the emancipation, were, for a time, to-wit: from 1859 to June, 1865, incapable of taking. The question is perhaps not materially altered by this view of it, since from 1859 to 1865 the legacy to them would have been illegal. And, if the doctrine contended for be true, the Act of 1859 revoked the legacy because it made it illegal.

We state the ease, however, in this way, because, whilst it is almost impossible to find a case where a will, lawful at the time of making it, and lawful at the death of the testator; has yet been unlawful during a portion of the time intermediate; yet there are numerous cases put in the books, of specific legacies or devises, where this very state of things has existed. By the ancient law, heretics, apostates, traitors, felons, outlaws, excommunicated persons, could not take a legacy or be executor: Swinburne on Wills, part 5, section 2, par. 1. Yet he says: “For this is perpetual, that if any person be incapable either when the testament is made or when the testator dieth, it is as if he were always incapable. But it hindereth not if he be incapable at other times.”

And again, part 7, section 19, paragraph 1, after saying that a legatee must be capable of taking at the death of the testator, he adds: “As for any other time, whether it be betwixt the malting of the will and the testator’s death, or betwixt his death and the probation of the will, it skilleth not.” So of the ability of one to make a will, he says — part 7, section 17, par. 2: “And here note, that there be two times wherein it is necessary that there be in the person of the testator ability to make a will; the one is the time of making the testament, when it secureth his substance or being; the other is the time of the death of the testator, when it receiveth his strength and efficacy. As for the time betwixt the making of the testament and the death of the testator, it skilleth not whether the testator have -any such power or not.”

6. By the 6th section of the Statute of Frauds, and by our Code, section 2437, wills are irrevocable, except by some other will in writing, or by burning, cancelling, tearing or obliterating the same. As these acts of tearing, cancelling, etc., may sometimes be equivocal in their meaning, and as the intent is of the essence of such acts, parol evidence and parol declarations of the testator to explain such acts, are necessarily admissible, though there are decided -cases confirming even declarations explanatory to the time the act was done: 8 Jurist, New Series, 440; Doe vs. Palmer, 6 English Law and Equity, 155. But declarations by a testator that he has no will, that he has destroyed a former will, declarations of his dislike to the legatees of a will, indeed, all declarations are inadmissible, to show a revocation. The statute points out how wills shall be revoked, to-wit: by a new will or other writing, expressly revoking, or by an inconsistent will actually made, or by any destruction or obliteration of the original will, done with intent to. revoke: Code, sections 2434, 2438. Parol evidence of declarations, and other acts, are admissible to explain acts equivocal in their nature, or to show what was the intent with which they wrere done. But to permit evidence of parol declarations by a testator, declaring a revocation, or expressing his opinion of the validity or invalidity of a previous will, would be to repeal the Statute of Frauds.

At last, in reference to the whole question, is not the simple fact that Mr. Thomas made this will, and Jcept it by him mattered, in spite of the Act of 1859, and in spite of all the changes produced by emancipation, and died with it still in existence, wrapped up and carefully preserved, as the evidence shows — is not this conclusive evidence that he intended it to stand? Does it differ from the everyday case of one putting off from day to day the making of a will, more suitable to his present surroundings than some older will, until death takes him unawares, and he dies with his will unaltered? The statements it is proposed to prove have hardly any weight. Nothing is more unreliable in fact, than the declarations of men upon such matters. That eminent portrayer of human nature, Mr. Dickens, who, as it is now said, was himself some time in a proctor’s office, makes one of his characters, long experienced in wills and their incidents, say, while searching for the will of a deceased friend, that his declarations, made but a few days before his death, to the effect that he had a will, was very strong evidence that no will would be found. The law wisely treats such evidence as worthless, except in explanation of acts of destruction or cancellation, and we think the Judge was right in rejecting it.

Judgment affirmed.