Billingslea v. Moore
| Decision Date | 30 November 1853 |
| Docket Number | No. 54.,54. |
| Court | Georgia Supreme Court |
| Parties | F. A. Billingslea, Adm'r, &c, plaintiff in error . vs. W. B. Moore, Adm'r, &c, defendant in error. |
Claim in Taliaferro Superior Court and motion for new trial. Decision by Judge Baxter. February Term, 1853.
The 4th clause of the will of Alexander Norris, dec\'d, was as follows:
"It is also my request, that after the death of my beloved wife, that Francis B. Billingslea has the tract of land whereon I now live, lying west of the road leading from Phillip's bridge to Crawfordsville; also that the said Francis B. Billingslea have the sum of five hundred dollars paid as his fees for doing the business of the within named."
Francis B. Billingslea was appointed executor, but never qualified; and administration, with the will annexed, was granted to W. B. Moore. After the death of Norris' wife, Moore as administrator, advertised the above named tract of land for sale—and a claim thereto was interposed by Billingslea.
Upon the trial of this claim, the Administrator offered to prove the value of the estate of Norris, for the purpose of showing that the five hundred dollars was an inadequate compensation, as fees for the executor named, in order to strengthen the presumption that the devise of the land was a part of the compensation, intended by the Testator. The Court rejected the evidence. The presiding Judge charged the jury as follows: that
The jury returned a verdict for the claimant; whereupon the plaintiff below moved a new trial, on the ground
1st. That the jury found contrary to the charge of the Court.
2d. That the Court erred in rejecting the evidence offered.
A new trial was granted upon both grounds, and this decision is assigned as error.
Gartrell, for plaintiff in error.
L. Stephens, for defendant in error.
By the Court.—Starnes, J., delivering the opinion.
It is the opinion of the Court, that as the record in this case presents the intention of the Testator in the fourth clause of his will contained, the same is not free from ambiguity.
Though from a consideration of the whole will, we incline to think that he designed to devise this tract of land absolutely to the claimant, Billingslea; yet we acknowledge that this inclination is not sufficiently great to take the shape of conviction.
As the case has again to be tried, it may serve the purpose of future elucidation, if we give briefly our reasons for this view of the subject. They are as follows:
1. Nothing appears in the will (or the record) to show claims of consanguinity, affinity, or particular friendship, on the testator, in favor of the claimant. The words of the will are, "It is also my request that Francis B. Billingslea has the land, " &c. He does not call him either relative or friend in this connection.
2. The clause is not constructed or punctuated, so as to indicate clearly that he designed to give the land absolutely.
3. In looking to this bequest, the technical rule, that when a testator makes a bequest to his executor, it is to be regarded as in consideration of his services as executor, is to be applied.
The above considerations seem to favor the view that the land was given in consideration of the claimant's services as executor.
On the other hand, it would seem fair to infer that the testator did mean to give the land absolutely to the claimant upon the death of the wife:
1. Because the word "paid" in the latter part of the clause is appropriate to the disposal of money, and not appropriate to the disposition of land. So it would not have been entirely appropriate, perhaps, to include land in the term "fees." Cer-tainly, if we take the several words used in this connection, viz.: "To be paid as his fees for his services, " &c, and consider them as following immediately after the sum of money stated, they seem inappropriate to the gift of the land.
2. Thus construing the clause, the effect of the technical rule cited is weakened, because this expression of intention specially to give the money as fees for services (the expressio unius) seems to exclude the conclusion (the exclusio alterius) that the testator intended so to give the land; and thus is furnished the exception to the rule which will be presently stated.
3. The force of the legal presumption involved in this rule is also lessened, though not destroyed, by the fact that in our State, provision is made by law for compensation, by commissions to an executor.
These are the conflicting features which cause us to doubt as to the intention of the testator, and to our minds, involve the same in ambiguity.
Upon the trial of this case, the Court below was asked by the defendant to give in charge to the jury the following rule, viz.: that when a legacy is given to one who is appointed executor, whether expressed to be for care and pains or not, the presumption is that the legacy was given in consideration of the appointment as executor, unless there are words in the will to show that the legacy is founded on a different consideration; and further, that where a legacy is given in consideration of such appointment as executor, the legacy must fail if the person so appointed does not qualify as such. This charge the Court gave substantially.
After a trial and verdict for claimant, a motion was made for a new trial by the defendant in error, which motion was sustained; one of the features of the Court's decision in granting the new trial, being an assertion and repetition of the above rule. To this the claimant excepts, and assigns the same as error.
We think the decision correct. The rule cited is unquestionably a sound, common law rule which is of force in our State. It is true, that our law allows commissions to an executor; butthis provision is not in its nature so repugnant to the rule, as to repeal it. As we have suggested, it is calculated to weaken the force and effect of the presumption created by the rule; but we are not prepared to say that it destroys it. The rule appears to us founded in a reason and a policy not entirely ceasing with the statutory enactment allowing commissions.
It was insisted by the counsel for the defendant in error, that the Court himself should have applied this rule, and have construed the will in the light of it. No exception was taken to the action of the Court in this respect, and the point is not therefore presented to us for decision.
We do not see why the Court should have referred this instrument to the jury for construction, when he had rejected all extrinsic testimony for its elucidation; but we are not called upon to pronounce a formal judgment on this point.
The Court below also decided that a new trial should be granted, because of error upon the trial in rejecting evidence offered by the administrator, going to show the value of the whole estate of the testator, and that such evidence should have been admitted. To this the claimant excepts, and assigns the same as error.
The general rule upon this subject is, that parol testimony is inadmissible to explain a will, except for the purpose of proving the circumstances surrounding the testator; that is to say, his situation in his relations to persons and things about him.
A Court and jury, in the effort to discover the intention of a testator may, as it were, thus put themselves in his place, and ascertain how the terms of the instrument affect the property, or subject-matter. Doe vs. Martin, 1 N. & Mc. 524. Brown vs. Thorndike, 15 Pick. 400. 2 Phil. Ev. 277. 1 Greenl. Ev. §§287, 288.
When the Court decided that for the purpose of aiding in the endeavor to ascertain the meaning of the testator, in the 4th clause of his will, proof might be adduced of one of the extrinsic or surrounding circumstances, viz.: the amount or value of the whole estate, it was only applying this general rule, and erred not therefore in so doing.
This was not deciding that the language of the testator might be proven to have been different from that appearing in the will; but it was simply saying that the will might be properly read in the light of the surrounding circumstances.
Such testimony was not only proper, but as we have seen, it was needed in this case, in order that the ambiguity which existed in this clause of the will might receive explanation. The fact (if it were so) that the amount of land and money taken together, as bequeathed by this clause of the will, were not disproportioned to the whole amount of the estate, as compensation for the execution of the will, was one of those surrounding circumstances which it will be readily seen might serve to elucidate the inquiry. All the light that can be obtained from these surrounding circumstances, is in our opinion needed, and proof to this effect should be by both sides accumulated.
The general rule above stated is sufficient to dispose of this case; but the discussion took a wider range,...
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