Dodson v. . Fulk

Hoicb, J., after stating the case: There are circumstances which permit the reception of parol testimony in matters con-eernipg wills and the contents thereof, and especially in reference to the intent of the testator in the case of advancements. Eor while the doctrine of advancements strictly arises only in case of intestacy, it is frequently necessary to construe this or equivalent terms when used in the will itself. In our opinion, however, the facts of this appeal do not call for or permit any application of the principle referred to. In the fifth item of the will of Bryson Eulk, father of feme plaintiff, it is provided as follows: “Eifth. That none of my children or grandchildren be required to account for anything that I have advanced to them, except that Louisa E. Dodson and E. M. Dodson or their *533 children are or shall be required to account for $500, with interest from the date I advanced it at six per cent.” Here is an express declaration on the part of the testator that before the feme plaintiff is permitted to share in the distribution of his estate she shall account for $500 and interest, and it is not open to plaintiffs to show that as a matter of fact she received more than that sum or less, or that she received nothing at all. Gardner on Wills, p. 573; Blacknall v. Wyche, 23 N. C., 94; In re Goblies' will, 10 N. Y. Supp., 18; Estate Jacob Eichelberger, deceased, 135 Pa. St., 160; Callendar v. Woodard, 52 S. W., 756. The plaintiff, then, is required to account for $500 as directed by the will, and there is no evidence whatever that the $500 referred to is included in the $868 bond held by the testator against feme plaintiff and her husband. Being in the form of a' bond for payment of money and secured by a deed of trust on feme plaintiff’s land, the presumption is that it is a debt and to be dealt with as such (1 A. & E., 778), and the testimony all tends to uphold the presumption. There seems to have been a dispute between the parties as to whether the $500 mentioned in item 5 of the will referred to that amount of money which the testator had at some time advanced to the firm of Dodson Bros., of which plaintiff E. M. Dodson was a member, and an issue was submitted to determine the matter, the verdict therein being for defendant; but neither the issue itself nor the ruling of the court in deciding it is relevant to the inquiry. The feme plaintiff must pay the debt of $868, at least to the value of the property included in the deed of trust, because to that extent she is legally bound for it. And she must account for the $500 because the will requires her to do it; and it is not relevant to any question involved in this suit whether the $500 went into the firm of Dodson Bros, or not. There is no- error to plaintiffs’ prejudice, and the judgment of the court below is Affirmed.