Clements v. Hood

STONE, J. 1. Many of the objections and exceptions taken to the admission of evidence, offend the rule declared in the case of Milton v. Rowland, 11 Ala. 732 — are too general in their effect, and will not be here noticed. — See, also, South and North Alabama Railroad Co. v. Jones, at this term. A specimen of the class of exceptions to which we refer, is the following: “To each interrogatory, calling out each separate paragraph of the answer of the witness, plaintiff objected, and .also objected to each paragraph of the testimony, . . and plaintiff excepted.” This statement is placed at the end of •a mass of testimony, a large part, if not the whole, of which was legal and competent. Such exception can only be treated as a general exception to the whole of the witness’ testimony; and this court will not dissect and scrutinize the various propositions contained in the mass, to ascertain if one or more of them may assert propositions erroneous in law. To command our attention, error must be more specifically pointed out. 2. Mrs. Hood was not an incompetent witness to testify on the sole subject on which she was interrogated. It had no reference to any “ transaction with or statement by ” the intestate. — Revised Code, § 2704; O’Neal v. Reynolds, 42 Ala. 197. 3. The remaining objections and exceptions to the introduction of evidence, are all of a class. They raise the single question of the right of defendant to prove acts and declarations made by John A. Goodson, the deceased, in his life-time, ■ showing his rule and intention in the matter of advancements to be charged against his several children after his death. The issue between the parties which was being tried, was between Mr. Goodson’s administrator and one of the distributees. Whether we regard the administrator as claiming in his own legal right, or as trustee for the creditors and •distributees, in neither event can he claim a higher right or interest than Mr. Goodson, the intestate, owned and [463] could assert in his life-time. He had the title, and had succeeded only to the rights of his intestate. He was but his representative, and was concluded by all encumbrances, limitations, and disabilities which Mr. Goodson had imposed on himself. He stood only in Mr. Goodson’s right. Claiming, as he did, strictly in privity of estate under his intestate, it follows that he is bound by all acts and declarations done and made by such intestate, showing, or tending to show, that any particular property given or lent, was not intended to be a charge by way of advancement. To hold otherwise would be to assert that a prospective administrator or distributor can acquire a vested right, which will control the power of a living ancestor in the disposition of his property; that the stream can rise above its fountain.—See Autry v. Autry, 37 Ala. 618, and authorities cited. There was no ■ error in admitting evidence of the declarations made by Mr. ■Goodson, after the slave and other property went into the possession of Mrs. Hood, offered as it was, by her, to repel the presumption of an advancement. 4. It is settled by an unbroken current of authorities, that money or property, given by a parent to a child, will be presumed to be intended as an advancement, unless such presumption is repelled by the nature of the gift, or by other ■ evidence showing that it was an absolute gift.—See Autry v. Autry, supra; Mitchell v. Mitchell, 8 Ala. 421; Butler v. Mer. Ins. Co. 14 Ala. 777; Merrill v. Rhodes, 37 Ala. 452. But such presumption is not conclusive. It may be overturned by proof. 5. The issue in this case was formed on the sworn report of Mary Hood, and her husband, Hiram Hood, in- answer to a notice to them “ to report on oath a list of the property received,” &c., under section 1905 of Bevised Code. In the report they had set forth that they had received various sums of money amounting to four hundred dollars. They then stated “that they received no other money or property from said Goodson in his life-time, which was intended as advancements.” To form an issue on this report, it became necessary for the administrator to affirm that Mrs. Hood had received other money or property, describing it. This had the effect of putting the onus of proof on the administrator, to show that she had received other advancements with which she should be charged. The maxim applies, JEi incumbit probatio, qtd dicit. The Probate Court did not,err in -the charge given numbered L 6-7. When, however, the fact was proven, if so found by [464] the jury, that the slave, Lavinia, had been sent by the father to his daughter, and had been allowed to remain there, this shifted the onus, and cast on Mrs. Hood the necessity of repelling the imputation that it was intended as an advancement. — See authorities supra. And such presumption was very much fortified by the terms of the receipt, if valid,, found among Mr. Goodson’s papers, which reads as follows:' “Rec’d — Vernon, Miss., Nov. 24, ’60 — of my father, John A. Goodson, a negro girl, named Lavinia, valued at ($1,007) one thousand and seven dollars, which amount is-to be deducted out of my distributive-share of father’s estate, when divided. Mary Hood. “Attest: T. O. Sampson, Justice of the Peace.” The proof shows that Mrs. Hood signed this receipt; and being found among the papers of the deceased, if binding, and if the transaction remains unexplained, it amounts to conclusive proof that the slave, Lavinia, was received by Mrs. Hood as an advancement. The paper, on its face, is more than a receipt; it is a contract to account. W. F. Goodson, son of intestate, testified that he delivered the slave to Mrs. Hood; that the slave was not received by his sister as a gift or advancement, because she was dissatisfied with the terms of the title executed by her father,, and which title accompanied the slave. Witness then left the slave with his sister, and agreed that a title should be drawn and sent to her, containing other and different stipulations, then agreed on. Witness testified that he took the-receipt, copied above, upon an express agreement and condition that he was not to deliver it to his father until such corrected title was executed and forwarded. He stated further that he delivered the receipt to his father, and that - no corrected title was ever made. No excuse or explanation is offered why the receipt was delivered, without requiring the performance of the condition, on which alone, he testified, he was authorized to make the delivery. There is much proof in the record, tending to show that the intestate never regarded the slave as having become the property of Mrs. Hood. If the testimony of W. F. Goodson be true, the receipt was not lawfully delivered to his father, and it could not become a binding contract. It was signed and delivered only as an escrow; and the condition not having been performed, it could not be delivered so as to bind her. — See 1 Brick. Dig-308, §§ 31, 32, 34. [465] This question, however, does not appear to have been mooted in the court below. This receipt, or contract, was executed by a married woman, without the concurrence of her husband. All the testimony bearing on the question shows it was signed in Mississippi, and that Mrs. Hood then resided there. The validity of the paper, as a binding contract, depends on the law of that State. There is no proof before us, and there was none before the Probate Court, showing what was the law of Mississippi bearing on that subject. In such case, we are. bound to presume the common law prevailed there. — 1 Brick. Dig. 349, § 9. Under the rules of the common law, such contract made by a married woman is void, and imposes no obligation, as a contract, on her.—Alexander v. Saulsbury, 37 Ala. 375. It could only amount to proof of an admission, made by her, that she had received such property. Such admission is not conclusive, but is, at most, only evidence to be weighed. Any other legal evidence, contradictory or otherwise, should have been received, bearing on the question of advancement. vel non. The third charge given, while it did not take the same view of the receipt which we have expressed, was too favorable to appellant, and could not possibly have worked any injury to him. There was no error in the second charge given. Judgment affirmed.