Tillotson v. . Race

Denio, J. I am of opinion that the clause in the will of Joseph Tillotson, would operate as a gift of this note to the defendant, the maker of it, though it appeared that when given it was an ordinary business transaction, and was then expected to be paid both by the maker and the payee. The clause is not limited to notes which were given for moneys which were advanced as gifts at the time they were given. It is true, that four of the five notes against the children of the deceased daughter, which were found among the testator’s papers, were of that character; but these would not have furnished any evidence of indebtedness against the makers, if the holder had not made any will. The amounts mentioned in them were gifts at the time they were advanced. But this clause is broad enough to extinguish notes which were, when given, common business paper. The terms used to express the consideration of the notes which were intended to be discharged, are—sums that have been given and paid and advanced—to these children. These words, or the two last of them, apply well enough to moneys advanced by way of loan. It is then expressed that notes had been given for these sums, and there is a strong implication that the notes, or some of them, were such as would have constituted a debt in the hands of the testator’s representatives against the makers, if they had not been extinguished by the will. If all the notes had been given to secure actual loans made to the children, and there had been no contemplation, at the time, that they should be considered donations, there can be no doubt but that they would have all *126 been cut off by the will. The argument would have been irresistible, that the clause had nothing to operate upon except these notes. Now, the clause does not, on its face, relate to a part of the children, but to them all. The testator certainly supposed that he had the note of each one of these grandchildren. But if the note in question is not to be counted as one to which the clause applies, then he had the notes of only four of the five children of Sabrina. Therefore, to make the clause applicable in any way to the defendant, we must hold that this note was embraced in it. It is the only note the testator held against the defendant. This view is not changed by the evidence, that at the time the note became due it was treated by the testator and by the defendant as one which was to be paid. This was before the will was made, and it may very well be, that up to the time he sat down to draw his testament he intended to collect the note. If he then used language appropriate to make a gift of it to the defendant, or to direct its cancellation, it was extinguished when the will took effect by his death. But concede that this view is not satisfactory. The doubt which the evidence gives rise to, is in the nature of a latent ambiguity. There is nothing obscure or equivocal on the face of the will. It is only by means of the proof that there are two classes of notes, namely, those which were given for money advanced by way of gift, and this one, which was given for money lent, that any question arises. The doubt is, whether the testator intended to make the same provision for two subjects apparently so dissimilar. That he intended to extinguish the notes which were, on their face, given as acknowledgments of donations, is plain; but whether he intended to embrace this note, which was given for money lent, may be considered doubtful. The rule in such cases is, that a doubt which has been raised by parol testimony may be resolved by the same kind of evidence. It was then competent, I think, to prove that the testator considered and treated, and talked of this note as one which was not to be paid, but which was held by him simply as the evidence of an advancement to the de *127 fendant. It was admissible, for the purpose of applying the language of the clause in question. It shows what the testator considered to be embraced in the idea of notes taken for money given. The testimony of Derick Bace, and that of Christina Bartle, so far as relates to the last conversation with the testator mentioned by her, would be admissible upon that principle. According to these witnesses, he declared that he had given the money mentioned in the note to the defendant, and did not intend to receive it from him. If this was so, he held the note for the same purposes for which he held the four notes against the other children of Mrs. Sabrina Bace. The other declarations of the testator are admissible on a different ground, namely, by way of contradicting Mrs. Tillotson, the testator’s widow. She understood the note to have been given for money lent. She may have been mistaken; but whether so or not, it was competent for the defendant to show that the transaction was of a different character. The note bore date the 2d June, 1852, and was for $100, which was shown to have been paid over by the testator to the defendant at that time. The testimony of the defendant’s brother was, that the testator declared," the preceding spring, that he proposed to give the defendant $100 in addition to what he had already given him, and that he should be ready to advance it by the 1st June ensuing. In the absence of evidence that he accomplished this purpose by giving the defendant the additional $100 on any other occasion, this declaration would furnish evidence of some weight that the amount mentioned in the note was advanced by way of gift and to fulfill the purpose mentioned, and not, as Mrs. Tillotson supposed, as a loan. The other declarations proved by means of the questions which were objected to are of the same general nature as the last, though less precise. The only difficulty in holding the note to be embraced in the canceling clause of the will is, that it is (as alleged) shown to have been given to secure a loan. The note does not state, on its face, that it was given on such an occasion; but that is shown by extrinsic evidence, namely, the testimony of Mrs. Tillotson. But her testimony is not conclu *128 give. The declarations of the testator, both before and after the date, certainly tended to show that though it may have assumed the form of a loan, it was in truth a gift. Independently of the will, it would not have been competent to show that the note was an essentially different instrument from what it purports to be; but if the will be construed as limited to notes which had been given as evidence of gifts where no debt was created, we are immediately put upon the inquiry whether a particular note claimed to be embraced in the provision was of that character. In such an inquiry we are not, of course, confined to the terms of the writing, for the proposition assumes that language has been used, in a special sense, different from its ordinary acceptation. I think, therefore, that these exceptions are not well taken, and that the judgment is not erroneous. All the judges concurred; Comstock, Oh. J., and Seldeít, J., putting their judgment upon the construction of the will- judgment affirmed.