Doyal v. Smith

By the Court. Lyon, J., delivering the opinion. When this case was before this Court on a former occasion —28 Geo. Rep. 262—it was held that the clause of the will, as to Floyd, may be read two ways; either as an absolute gift to the wife, to take effect immediately, or as a disposition similar to that made of Solomon. The meaning of the will as to this negro, is, in the language of the books, [202] “equivocal,” and parol testimony was allowed for the purpose of ascertaining which construction was intended by the testator — not from what was written in the will, for upon that the Court was to pass, and not the jury — but from what was said by the testator at the time of the execution of the will, to be proven by the witness. From the manner in which the Court submitted the question to the jury, with his argument in support of his construction as being the true one, the jury may have felt and probably did feel, that it was their duty to construe the will from the words of the will rather than from the testimony of the witness, and that the views presented by the Court in the charge were the correct ones. We think this was error. 2. But, we think, this judgment must be reversed, on. another and more conclusive ground, and that is : That the verdict is contrary to the evidence. The testimony of the witness Smith is, that the testator, at that point in the will, and while it was being written, in which Solomon is disposed of, said: “Betsy,” addressing his wife, “I will give you Floyd.” If this clause had been inserted in the will: “I, also, give Floyd to my wife” — and that is the sense of - what testator did say — would there have been any doubt as to what disposition the testator meant to make of Floyd? We think not. This testimony is very satisfactory, that the testator meant that his wife should take an absolute gift in the negro Floyd, arid as the verdict was against that conclusion, a new trial must be had. JUDGMENT. Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be reversed, upon the ground that the Court erred in refusing to grant a new trial on the ground that the verdict was contrary to evidence.