Bransford v. Crawford

Trippe, Judge. 1. In the distribution of an estate, every child of the intestate, and if a child be dead, the representative of that distributive share, must first account for any and all advancements made in intestate’s lifetime: Code, section 2582; 23 Georgia, 351. 2. As to the other question made in the record, whether the declarations of the intestate are admissible in evidence as to how he held the notes on his son, to-wit: as advancements and not-as debts, we think the case of West et al., executors, vs. Bolton, 23 Georgia, 351, determines it. It was there held that just such declarations made by the father-in-law were admissible against the children of his son-in-law, in a suit by them against the executors for their share in their grand-father’s estate. Strong decisions were read on the argument of this case to the contrary of this rule: Kreider vs. Boyer, 10 Watts, 54; Haverstock vs. Sarbach, 1 Watts & Sergeant, 390; 4 Wheat., 130. But this court, in West vs. Bolton, supra, seems to have considered these decisions and to have deliber 22 ately held the declarations to be admissible. It is true, in that case the declarations were solemnly made by the testator, at the time of (lie execution of his will and afterwards. When first made, the notes were lying before him, so there was no question as to his meaning and as to the identity of the notes. Plow far the testimony may go in this case to satisfy the jury we cannot say. Whether the notes can be satisfactorily identified as the ones the intestate referred to and sufficient explanation given of their terms, (to-wit: the party to whom they were made payable) is a matter for the jury. These and the manner and circumstances under which the declarations may have been made are to be left to them. In the case in 23 Georgia it is stated in the opinion, as reported, that certain cases in the Connecticut reports seem to favor the admission of such declarations: Clark and others vs. Warner et al., 6 Connecticut 355, and Johnson vs. Belden et al., 20 Ibid., 322, are cited. We rest this decision on the one rendered in 23 Georgia. As to section 2580, Code, prescribing that'a certain act on the part of a parent “shall be evidence of the fact of an advancement,” it may be remarked that it cannot, of course, be claimed that it was intended to declare that to be the only way in which it could be proved. A gift made with the intent of its being an advancement, and so accepted, may be proved to be such, though there be no writing either by the parent or child. Let the evidence go to the jury, for their consideration, under the directions to be given them by the court. Judgment reversed.