Beall v. Blake

• Decision Date: 31 August 1854
• Docket Number: No. 18.,18.
• Citation: 16 Ga. 119
• Parties: Nathan H. Beall, executor, plaintiff in error. vs. Samuel R. Blake, et al., defendants.
• Court: Georgia Supreme Court

16 Ga. 119

Nathan H. Beall, executor, plaintiff in error. vs. Samuel R. Blake, et al., defendants.

No. 18.

Supreme Court of the State of Georgia

AUGUST TERM, 1854.

In Equity, in Houston Superior Court. Decided by Judge Hardeman, April Term, 1854.

The facts of this case, are as follows.

In 1834, Mrs. Rebecca Bostwick died testate, leaving a large estate. Her will contained sundry specific legacies, and the remainder was bequeathed to certain residuary legatees, of whom Mary Adeline Beall, who afterwards married Blake, the defendant in error, was one. Nathan H. Beall was her executor. After her death, a litigation arose between her legatees, and the legatees under the will of her former husband, Jacob Bostwick, in which the question was, how much of the estate she had the right to dispose of by will.

The result was a decree, that the estate, the whole of which Mrs. Bostwick had bequeathed,) should be equally divided; and that one half of it should be paid out, under her will, and the other half the will of Jacob Bostwick.

The present case is a bill filed by Samuel R. Blake, in right of his former wife, (she being since deceased,) and by Nathan Allen, a trustee under her will, against Nathan H. Beall, ex-ecutor, for the residuary legacy of Mary Adeline Blake. The object of the bill, among other things, was to have the specific legatees under Mrs. Bostwick\'s will, to abate one half, in consequence of the decree before mentioned, so that the loss should fall, ratably, on them and on the residuary legatees. To this bill the defendant filed a demurrer, for want of equity, and for want of proper parties, none of the specific legatees being made parties, and for misjoinder of parties, in making Nathan Allen a party plaintiff. He also filed a plea, setting forth, that in the bill originally filed in this case, the same matter, in relation to the abatement of the specific legatees, had been set up; and that a demurrer was filed thereto, and that the Chancellor was about to give judgment for the defendant on demurrer, when the complainants struck out the matter in question from their bill; that defendant believing that the point had been abandoned by complainants, had gone on, in good faith, to pay out certain of the specific legacies; and that the matter had been again brought in, by way of amendment to the bill.

During the progress of the argument on the demurrer, a motion was made by defendant, to take this amendment from the files, "it having been improperly filed, and without proper leave of the Court" as the defendant insisted. As to this amendment, there had been made an order of the Court below, as follows:

"Samuel R. Blake et al.

vs.

Nathan A. Beall, executor.

Bill, &c. in Houston.

On motion of Complainant's Solicitor, ordered, that the order setting down the above stated case be opened, and that complainants have leave to amend their bill, in the ease stated, and that they serve defendant with a copy of said amendment, in terms of the law".

Service of the amendment made on this leave—the amendment aforesaid, moved to be taken from the files—was ac-knowledged by Whittle, Solicitor for defendant, on the 26th of October, 1853.

Which motion the Court refused, as coming too late. The Court likewise over-ruled the demurrer, and the plea, ordering the plea to stand for an answer; to which several decisions, the defendant excepted.

Nisbet; Whittle, for plaintiff in error.

Rutherford, for defendant.

By the Court.—Benning, J., delivering the opinion.

Should the Court below, on the motion of the defendant in the bill, have ordered the amendment to be taken from the files?

The only reason assigned by the defendant for this motion was, that the amendment had, as he insisted, been "irregularly and improperly put in, the subject-matter having been before passed on."

But it is not true, in point of fact, that the "subject-matter" of the amendment had been "passed on." What is true is this: When the Court was about to give judgment—about to "pass on" that "subject-matter", the subject-matter was, by the complainants, struck from their bill, and so the Court was prevented from giving such judgment.

Afterwards, the Court gave the complainants leave to amend their bill, and then they re-inserted this same matter in the bill.

The bill, thus amended, the parties went to trial, and whilst the argument was going on before the Jury, the defendant made this motion, to have the amendment taken off the files.

This motion, the Court over-ruled, as coming too late—coming after the filing of his "plea and demurrer"—the plea and demurrer to the bill as it stood, with this matter re-inserted in it.

That reason may, perhaps, have been sufficient, but if that was not sufficient, the other which existed was so, viz: its nothaving been true, as matter of fact, that the Court had ever "passed on" the "subject-matter" of the amendment was sufficient, taken in connection with the large power of the Court, as a Court of Equity, to allow amendments. Brown and others vs. Redwyne and others, (14 Ga. R. Decatur, 1854.)

That the Court allowed the complainants to strike from their bill the matters which they afterwards, by amendment, again put into it, instead of being evidence of the Court's having passed judgment on those matters, is evidence of its not having done so; is evidence of leave, given by the Court to the complainants, to withdraw those matters from the danger of adjudication, and save them for use, if their use should be desired on another occasion—is evidence of anything rather than of a "retraxit."

In point of fact, then, there having been, as to the amendment, neither a judgment of the Court, not a retraxit of the party, and the time of the allowance of the amendment having been not too late, what existed to require the Court to order the amendment to be taken from the files? Nothing, as far as we can see.

One of the grounds of demurrer to the bill, is stated in these words: ' "Because, by complainants' own showing, said Blake, in right of his said wife, is only a residuary legatee under said will, while the legacy and negroes, bequeathed to said Mrs. Powers, was specific; and it is illegal and inequitable that a specific legacy should abate in favor of a residuary legatee." Was this a good ground of demurrer?

A testator's intention, if that is not illegal, is the law to his will. To this rule there is no exception, of which I am aware. And yet I am aware, that in 1786, Lord Thurlow, as Chancellor, in the case of Ashburner vs. McGuire, commenced the making of an exception to it, and that in the course of a short time afterwards, in the cases of Badrick vs. Stevens (3 Brown C. R.) Stanley vs. Potter (2 Cox) and Humphries vs. Humphries, (2 Cox) he completed the work, as far as in him it lay to complete it.

In the last of these cases, he makes the announcement, "thathe was satisfied, from the consideration he had given to the cases on a former occasion, that the only rule to be adhered to, was to ascertain whether the subject of the specific bequest remained in specie, at the death of the testator; and if it did not that then there must be an end of the bequest; that the idea of discussing what might be the particular motives and intentions of the testator, in each case, in destroying the subject of the bequest, would be productive of endless uncertainty and confusion." (Roper on Leg. 244.)

Now a thing cannot be said to "remain in specie", a testator's at the time of his death, if before that time he has sold it or otherwise parted with it, or if the thing has perished, or if it was never his, but was always another's although he thought it to be his when he bequeathed it. Lord Thurlow's announcement comes, therefore, to this: that if a testator, after making his will, has sold the thing which constitutes a specific bequest, or has otherwise parted with it; or if the thing has, itself, perished; or if it was never his to bequeath, but was always another's, although he thought it his—in any of these eases, the specific bequest is adeemed—is so completely adeemed, that if the case be that the thing given has perished, there can be no replacement of it by an equivalent, in money or other thing: or if the case be, that the thing bequeathed has ceased to belong, or has never belonged to the testator, there can be made, by the executor with the true owner, no arrangement by which to render the thing subject to the bequest, no odds how manifest it may be, in the will, that the testator intended such replacement, or arrangement, whichever it might be, that the case should require.

This exception, thus declared by Lord Thurlow, to the old rule—the rule which makes the intention of the testator, if not illegal, the law to a will, was, in England, followed, in a number of cases, and in perhaps a still greater number, was not followed. Cases in which it has not been followed, or in which, in the opinion of Roper, it would not be followed, because too directly in the teeth of decided cases, are of the following kinds:

Cases in which "the alteration of the fund is made by mere act or operation of law".

Cases in which "a breach of trust has been committed, or any trick or device practised, with a view to defeat the specific legacy".

Cases in which "the fund, instead of being annihilated, remains the same, or in substance the same, as at the date of the will"—as "if stock, specifically given, be merely transferred, with the testator's consent, from the name of the trustee into his own".

Cases in which "the testator lends the stock specifically bequeathed, on condition of its being replaced". (1 Bop. Leg. 240-1.)

Cases like that "in which A bequeathed the sum of 550l then in B's hands, " and in which "it appeared that before the will was made, A had placed that sum with B, and obtained his note for it", and in which "it appeared that A had also, before the making of his will, drawn several bills upon B, which reduced the 550l. to 430l" (1 Rop. Leg. 445.)

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