May's Heirs v. May's Adm'r.

CHILTON, C. J. 1. Since this case was argued, a brief has been submitted, on the part of Mr. Murphy, insisting that the appeal should be dismissed, on the ground that it is not warranted by the Code; but we think the objection cannot be supported. As to the property distributed, the decree of the court confirming the report of the commissioners appointed to make distribution, and ordering it to be made accordingly, is final, (Code, § 1798); and we think an appeal — 151 — lies, in all cases, where a distribution of an intestate’s estate is made among distributees, and they should be dissatisfied with such distribution. Whether the estate was ordered to be distributed at the instance of the legatees or distributees, or of the administrator, can make no difference. True, a literal construction of the 4th clause of section 1888 of the Code would seem to indicate that the proceedings there mentioned, from which an appeal lies, should be commenced and prosecuted by legatees or distributees. But, we apprehend, the true meaning and spirit of the section is, that whenever proceedings are commenced and prosecuted for the payment of legacies, or the distribution of estates, no matter by whom, if the court commits an error, the legatee or distributee has the right of appeal. The injury is the same which would arise out of erroneous proceedings, whether set on foot by the executor, or administrator with the will annexed, or by the persons entitled to the distributive share or legacy. Without stopping to inquire whether the motion does not come too late, after the defendants have joined in error and argued the case upon its merits, we are satisfied the motion to dismiss the appeal should be overruled. 2. Before proceeding to discuss the main question, it is proper to determine whether the deposition of Boykin should have been admitted. Section 2318, clause 5, provides that the evidence of a witness may be taken, in a civil case, by either party, “ Where the claim or defence, or a material part thereof, depends exclusively on the evidence of the witness.” The affidavit to take Boykin’s deposition states that on his evidence a material part of the defence depends exclusively, and is a substantial compliance with this provision of the Code. ‘3. It is needless to examine the objections to the sufficiency of the commissioner’s certificate. The motion went to the exclusion of the entire deposition, and was made after the parties had entered upon the trial. Section 2328 of the Code requires that, where the objection appears upon the deposition, it must be made before the parties enter upon the- trial. The objection, therefore, came too late, and was properly overruled. 4. Another preliminary question has been raised by the — 152 — counsel for the appellees; namely, that the probate court has no. jurisdiction to pass upon questions of ademption of legacies. It is urged that, from the limited and special jurisdiction of this court, it must be confined to the execution of the will according to the legal rights of the respective parties, and cannot rightfully adjudicate upon matters proper for equitable cognizance. We readily concede, that there may be cases, involving equitable circumstances, which, from the organization and mode of procedure of the court, it would be incompetent fully to adjust; but, having full power to order distribution of estates, and the payment of legacies, it clearly has the power, as incident to this jurisdiction, to determine the shares of the distributees, and whether the legacies are valid charges upon the estate, or have been satisfied or adeemed. The jurisdiction is fully sustained by the case of Harrison v. Harrison, 9 Ala. Rep. 470; see, also, Smith v. Smith, 21 Ala. Rep. 761. The question whether the legacies to the three children of the testator by his first wife are adeemed or satisfied, in whole or in part, by the subsequent advancements of property to them, is one which naturally and legitimately pertains to the proper execution of the will and the duo administration of the estate; and although the powers and jurisdiction of the probate courts are limited, yet they necessarily extend to questions of this kind, as indispensable to the proper settlement and distribution of estates.— See Smith & Loveless v. Hall, 20 Ala. Rep. 777. 5. We come, then, to the main question discussed at the bar, namely, whether the legacies to Moore and wife, Mrs. Croom and Pleasant May, are to be considered as satisfied, in whole, or pro tanto, by the portions given them off by the testator after making his will. And we would first take occasion to say, that it is now too well settled to be disputed that parol testimony is admissible, in cases of this kind, to show that the testator did not intend by the subsequent provision to satisfy that previously made in his will. — Biggleston v. Grubb, 2 Atk. Rep. 48; Rosewell v. Bennett, 3 ib. 77. In the case last cited, Lord Hardwicke said, he was of opinion that the plaintiff ought to be let into this evidence to show the testator’s intention, and that it had been done in several cases; one before Lord King, one before Sir Joseph — 153 — Jekyll, and another before himself, — alluding to the above case. — See Chapman v, Salt, 2 Vern. Rep. 646; Pile v. Pile, 1 Cha. Rep. 199; Mascal v. Mascal, 1 Ves. 323; Ellison v. Cookson, 2 Bro. Ch.Rep. 307; Shudal v. Jekyll, 2 Atk. Rep. 518; 3 Bro. Ch. Rep. 61; 1 ib. 296; Williams on Exr's, 956, mar.; 7 Ves. 508; 9 ib. 577; 4 Madd. Rep. 420; 2 Russ. & M. 310; 6 Sim. 528. The object of such proof is not to change the will, or give to the language employed a meaning different from that which it ordinarily and appropriately has, but merely to show that the testator has not executed or satisfied some bequest contained in it, in whole or in part. The proof, in other words, does not alter, add to, or change the will, but is admitted to show with what intent the subsequent portion, gift, or advancement was made. — See, Jeacock v. Falkner, 1 Bro. Ch. Rep. 296; 1 Greenl. Ev. § 296. “ There are,” says Mr. Gresley, “ certain classes of cases, in which parol evidence has been allowed incidentally to affect the construction of wills, on the ground that a presumption may be rebutted, and then, e contra, corroborated, by any kind of evidence.” He cites, as the simplest illustration of the rule, the admission of parol evidence to show that two legacies, coinciding in amounts and in the expressed motives, which the law presumes not to be accumulative, were so intended by the testator. — Gres. Eq. Ev., 209-210. “ The effect of such evidence,” says Sir John Leach, V. C.,in Hurst v. Beach, 5 Madd. 350, “ is not to show that the testator did not mean what he said, but, on the contrary, to prove that he did mean what he has expressed.” — See, also, Coote v. Boyd, 2 Bro. C. C. 521; Masters v. Masters, 1 P. Wms. 424; Roper on Legacies, by White, p. 317; 6 Cruise's Dig., tit. 38, ch. 6, §§ 45-57, and notes by Prof. Greenleaf. Whenever such parol evidence is admitted, the opposite party has a right, as a matter of course, to rebut it by similar proof. Whether such parol proof, if consisting, as in this case, of parol declarations, should not be limited to declarations accompanying the gift or advancement, and explanatory of it, thus forming part of the res gestae, is a question which, under the view we take of this case, it is unnecessary to decide, inasmuch as, giving the appellees the advantage of the proof, the result is unaffected by it. — 154 — 6. Upon the question whether the legacies to the three oldest children are adeemed by the subsequent gifts to them of land and negroes, we have had some difficulty. The testator expressly declares in his will, that it is his “ settled purpose” to make his wife and all his children “ equally interested” in his property. He suffers this will to stand, unaltered by codicil or otherwise. The courts of chancery always regard the circumstances of the case, in endeavoring to arrive at the true meaning and intention of the testator; and incline against any construction which would give some of the children double portions, to the partial exclusion of others, whose claims upon the testator’s bounty are equally meritorious. Bellasis v. Uthwatt, 1 Atk. Rep. 427, marg'. p. What did the testator intend by giving off portions to his three oldest children ? The daughters were married, and all of the three children were grown, and to be settled off. It was, therefore, very natural for the parent to give them such amounts of his property as would approximate their respective shares of his estate as provided for in his will. True, the deposition of Boykin, and the evidence of the witness Harless, show that, subsequently to apportioning off some $10,000 worth of property, consisting of land and ne-groes, to each of his three oldest children, the testator said that this provision was exclusive of the provision he had made in his will, — that they were children of his first wife, that she had assisted him in making it, and that he intended to give them more than he did to his younger children. It must be borne in mind that none of these declarations were made contemporaneously with the advancements. What was said at that time is not proved by any witness. It is hardly probable uhat, in a matter of such importance. as the giving off of thirty thousand dollars worth of property, to three out of nine children, all equally provided for in his will, the testator would have left himself without a witness to the transaction, had he designed these portions to be exclusive of the provision made by his will. The most natural and reasonable inference, even to a person unacquainted with the law, would be, that giving off to these three legatees portions of his estate which he had disposed of by his will, approximating the shares to which they would be entitled under the — 155 — will, was intended to be a satisfaction of the bequests to them, at least to the extent of the property thus apportioned; and with this the law agrees. The testator must have been apprised of this; and yet the only evidence that the advancements were intended to be accumulative consists of loose declarations, made by the way, liable to be misrecollected, as well as misapprehended, by those who heard them, and which, if made precisely as stated, may have been the result of momentary impulse, growing out of a recurrence to family difficulties to ivhioh the testator alluded, as deposed to by one of the witnesses. In view of this, ^e should feel that we were not warranted in thwarting the purpose of the testator, the settled purpose solemnly announced in his will, of giving his children “an equal interest in his estate.” Equality is equity; and if the testator, after this solemn announcement, did not intend to do equity as between his children, having, so far as this record discloses, equal claims u]»on his bounty, we repeat, that he would, no doubt, have furnished more unmistakable evidence of his intention than loose, or, it may be, hasty declarations by the wayside. But it is argued, that the bequests to the children, and the portions given off or provisions respectively made for the three oldest, cannot be regarded as a satisfaction the one of the other, either in whole or in part, because, 1st, the provision by will is for a residue, — is uncertain — may amount to 'largely more than the provision made by the gift of the testator, or may amount to nothing. We have no disposition to controvert this doctrine in the case before us, for we do not consider the portions provided for in the will as falling within the designation of residue, as that term is understood in this connection. Here, the testator, possessed of a large estate, and but little in debt, so far as we aré informed by the record, desires that his debts should be first paid, and that his remaining property should be equally divided. The shares bequeathed are equal shares of Ms entire property. If the fact that the debts are first to be paid changes the bequests into a residue, then, as the law requires the debts first to be paid, and charges the whole estate, both real and personal, with their payment, every bequest, necessarily being out of what remains, would, in this sense, be a portion out of a residue, — 156 — and, in such case, ¿here could be no presumed satisfaction of such bequest by subsequent gift inter vivos. Such is not the law, with respect to voluntary portions to children. But concede that the term “ residue” is used in its technical sense, we are still of opinion, that, as the equal distribution of this residue is provided for by the will, and the respective shares constitute portions for the children, these shares may well be satisfied, in whole or in part, by subsequent provisions made by the testator in his lifetime, in setting up in life his older children. "We must look to the will, which provides for equality, equality of distribution with respect to the property which the testator then had; for, if he had died immediately after its execution, it would have embraced his entire estate. We must, then, look to the character of the subsequent provisions or portions given off. These are about equal, as respects the three children advanced; and their respective shares vary, perhaps, very little from the amounts to which they would be entitled under the will. The property given off consisted of land and slaves, the same property bequeathed and devised to be shared equally between all the children, not specifically, but generally. Thus, taking a common-sense view of the conduct of the testator, interpreting it according to our experience of the ordinary transactions of mankind, we feel constrained to hold, that the portions given to the older children were so much advanced to them of the provision made for them by the will. This accords not only with justice, with the settled purpose as declared by the testator in his will, but with the policy and spirit of our law as evidenced by our statutes, requiring advancements to be brought into hotchpot — not allowing them, if the party is willing to bring them into the general distribution, to operate as a substitute for, but as a part satisfaction of, what the children, advanced would otherwise be entitled to; thus securing equality of distribution among the children. Had the amounts advanced been inconsiderable, the presumption that the provisions were cumulative and intended so to operate, would have been much less stringent. But when the provision amounts to as much, or more, or approximates very nearly, the amount to which the child would be entitled under an equal distribution as provided for in the — 157 — will, the presumption becomes very strong that the father was executing his will, in part at least; and under such circumstances, the law requires very clear and satisfactory proof that it was intended by the father to give the children thus advanced double portions. The question is one of intention; and the parent, having made his will, and having provided for the equal distribution of his property among all his children, must be supposed to have decided what, under the then existing circumstances, ought to be the .portion of each child; not with reference to the wants of each, but attributing to each the share of the whole which, with reference to the wants of all, each ought to possess. — Pym v. Lockyer, 5 Myl. & Cr. 29. If it becomes necessary, in the opinion of the parent, after making such provision by will, to make advancements to some of the children upon their marriage, or to set them up in life, the equality provided for in the will ought not to be disturbed, except upon the clearest proof that the subsequent gifts were designed as an addition to the provision made by the will, and that such was their character when they were made; for, if they operated as a satisfaction, pro tanto, when made, we apprehend the subsequent declarations of the testator, without more, would not change their character. Such declarations are only admissible as evidence of the intention with which the subsequent advancements were made. That intention being once ascertained, they can have no effect, as they cannot change the bequests in the will. It is objected, that the advancements and bequests are not ejusdem generis. This makes no difference, if it were the intention of the testator to substitute the one, in whole or in part, for the other. — Jones v. Mason, 5 Randolph’s R. 577, and cases there cited. But the objection is not well founded in fact. The portions given off are of the very property of the testator’s estate which would have been subject to division among the legatees had the testator died the day before he made the advancements. Be this, however, as it may, if it was the intention of the testator to execute his will, in part, by placing the older children in possession of something like the shares which would fall to them under the will, then the legacies are adeemed, pro tanto. The following cases show that the intention is to be looked to, and will prevail, — 158 — whether the thing given by the will and that advanced be of the same kind or not: Hoskins v. Hoskins, Prec. in Chan. 263; Chapman v. Salt, 2 Ver. R. 646; Jones v. Mason, 5 Rand. Rep. 551; Richman v. Morgan, 1 Bro. C. Rep. 63; 2 ib. 394; 15 Ves. 507. The objection, that the gift to Moore and wife by the will differs from that made by the testator when he gave off to them their respective portions, is fully met by this view. He was making provision for these grown and married children, to meet their then exigencies, rather than withhold their shares until after- his death. Our conclusion is, that these gifts were not designed to confer’double portions, but are to be construed as in subordi•nation to the will of the testator, and the “settled purpose” therein contained, that his children should share equally in his property. If the testator gave them as much as their shares under the will, or more, he has fully executed his will in their behalf. If he has given them less, he has executed it only in part; and the probate court should complete its execution, by making their shares equal. Let the decree be reversed, and the cause remanded.