Glanton v. Whitaker

Jackson, Chief Justice. Suit on a promissory note, payable to one Whitaker or bearer, was brought by P. IT. and Ida M. Whitaker against Glanton, administrator on the estate of his wife, she being the maker of the note and the daughter of the payee. To this action two pleas were filed: one that there was no consideration, and the other that when the note was given by the daughter, it was understood and agreed between her and her father that it should be held by him as an advancement, and that he had procured it thus by fraud. The court struck both pleas, leaving only the general issue, and verdict and judgment went for the plaintiffs. The striking these pleas makes the error assigned. 1. Whitaker, the payee,'defended a suit by employment of counsel for his daughter, then the widow of one Arnold, in a contest over his estate, and expended the amount of money embraced in this note for her, and this is ample consideration therefor. It is true that the complaint is made in the plea that the fees were extravagant and that the deceased daughter did not request the defence; but it also appears that the result was a recovery of some five thousand dollars, which she received, though it is alleged by the plea that she had to employ other counsel before she got it. That her father, however, paid the amount of the note to the lawyers is nowhere denied, but admitted tacitly in the plea. We think the consideration ample, and this plea was rightfully stricken. Code, §2740. 2. The other plea fails to allege that there was any agreement that the holding the note as an advancement was to be incorporated in the ’writing, and was left out by fraud or mistake. Such being so, the plea is clearly demur [527] rabie, as in the case of Ordinary promises to pay in writ-, ing and changing the writing by parol evidence. There must be an agreement to put it in, and failure to do so caused by fraud or mistake. 52 Ga., 149, and many following cases. 3. But it is argued by the able counsel for plaintiff in error that this is a note given by a child to her parent, and that in such a case parol evidence, such as declarations of the parent, is always admissible; and many cases are cited to that effect, among them some of this court. It will be observed, however, that in this case the father is still living, and the time to distribute his estate has not arrived—he having survived his daughter—and that -all the cases cited arose on contests between children in the distribution of estates of the parent, as lo the character of the promissory nóte held by the father against the child at his death. So far as we know, there is no such case where the contest is between the father or his assignee during his life and the child. That case, we think, would be governed by the ordinary rules prescribed in 52 Ga., 149; that is to say, in such a contest the allegation must be made that the advancement feature of the agreement was to be incorporated in the writing, and was left out by fraud or mistake. This is really a contest between the father and the husband of the deceased daughter as her administrator; she is not his heir, for she died before him, he being yet alive, and she would be entitled to none of his estate; nor would her administrator, her husband, be entitled to any of it. Therefore, no question of advancement, as between the heirs of the father when he died, so as to admit in evidence his declarations touching the note, as admissible between a party to the note and a third party, can ever arise in a transaction circumstanced like this—the father being yet living, and the child, the maker of the note, dead; and in order to recover or defend this note on this plea, it must appear that the feature of the advancement was [528] by contract to go into the writing, but was left out by mistake or fraud. The cases in 23d Ga., 531, and 51st Ga., 20, arose in a contest between heirs of the estate, as to whether the notes were an advancement or a debt, and'so was the case of Cutliff vs. Boyd, 72 Ga., 302. See 19th Md., 323, 330; Abbott’s Trial Ev., 152, n. 2; 2 Wharton Ev., §§920, 923, 958; 2 Story, Eq. Jur., §1099 et seq. These citations by defendant in error show further that this relaxation of the rule in favor of turning a promissory note into an advancement “is part, dcubtless, of a system of rules established by courts of equity in the settlement of estates, to prevent double portions and to secure equality in the distribution, by which various writings between parent and child are allowed to be explained by parol,” to use the language of the counsel. Besides all this, we think that the case at bar is a strong one against any probability that this note was designed to be an advancement. The note is due twelve months after date, with interest, and there is a credit on it on the day it was made. To change such a clear written contract and promise to pay a sum certain twelve months after date, and to pay interest on it, into an instrument not to pay it at all, and to pay no interest at all, ought to require allegations and proof coming squarely up to the rule in 52d Ga., 149 ; especially when the contest is between the<assignee of a party and one who can never be the heir and distributee of that party. Judgment affirmed. See, cited for plaintiff in error, 23 Ga., 551; 66 Id., 287; 51 Id., 545; 3 Conn., 32; 6 Id., 355; 71 Ga., 545; 22 N. Y., 122; 20 Id., 320; 1 Sergt. & R., 314; 4 Wheat., 130; Code of Ga., §§2757, 2861, 3803; 4 Wharton, 138; 14 N. J., 240; 4 Abbott’s Tr. Ev., 154; 1 Am. R., 521; Brigh. on Desc., 402; 11 Pa. St., 233; 14 S. & R., 283; 16 Id., 482; 10 Id., 290; Byles on Bills, 102; Brigham on Desc., 350; 59 Ga., 562; 23 Id., 43; 66 Id., 286; 63 Id., 193; 55 Id., 78. For defendant, 52 Ga., 149, 151, 152, 386, 387, 448; 54 [529] Id., 289; 19 Md., 323, 330; Abbott’s Trial Ev., 152 n. 2; 2 Whart. Ev., §§920, 92-3, 951; 55 N. Y., 234; 2 Story Eq. Jur., 1099 et seq.