Evans v. Smith , 28 Ga. 98 ( 1859 )

By the Court.

Benning, J.,

delivering the opinion'.

The exceptions are two — one to the admission of the verbal evidence as to intention; the other to the admission of the paper as a will.

The object of this verbal evidence was, to show that the paper was a will; and whether the evidence was admissible or not, depended on, -whether showing that, would have been to contradict the paper. If showing that, would have been consistent with-the terms of the paper, then, to show that would not have been a violation of any rale of which we are aware. There is no rule that excludes parol evidence consistent with the writing to which it relates.

The question then is this: was the paper such, that, it might, on its face, be read as a will — as the will of Jincey Smith ? And we think it was.

The words will bear that construction. If we take the mere words, we may say, that the instrument was a double will — -the will of each sister. The words will well bear the following meaning, viz: “ I, Jincey, out of my love for Patsey, do agree to make her my heir if she outlives me; and I, Patsey, out of my love for my sister Jincey, do agree to make her my heir if she outlives me.” The consideration of each sister is her love for the other —not this agreement of the other. The making of the instrument by the one sister, is not the consideration for the making of it by the other. No ; the making of it by the one, is an act entiretly independent of the making of it by the other. The case is, in substance, precisely the same as it would have been, if each sister had executed a separate paper, and had said in that paper j ust what makes her part in the joint paper. The mere words, I say, authorize this conclusion. Suppose, then, that each sister had executed a separate instrument, and in it had expressed the same ideas which she expressed in the joint instrument, would these instruments not be wills ? What would there be to prevent them from being wills — assuming, of course, that they were properly attested, and were otherwise regular as to form ? Nothing, as far as we can see. They would be instruments merely in consideration of love; therefore, they would be revocable at pleasure; they would be instruments not to take effect until the death of their respective makers; therefore, they would not be deeds, for deeds take effect at their execution. Then, they would be wills, or they would be nothing. It is true, that they would be in form, covenants to convey, and not actual eonveyaces. But a will may take tbe form of most, if not of all other instruments. It may take the form of a covenant. In Coop vs. Coop, the instrument was in these words: “By this deed I bind myself to give to my wife, either upon the demise of her mother, or the sale of the Yorkshire estate,” &c., &. “I do, therefore, hereby ordain that my executors, administrators and assigns, consider this deed as the most solemn obligation, in confirmation of which, I set my hand and seal.” This instrument, though in form, only a bond, or covenant, was held to operate as a will. Note to Thorald vs. Thorald, 1 Eccl. Rep., 15. Indeed, mere precatory words often amount to a will.

Two cases were read to show that this was an instrument “unknown to the testamentary law.” The first was the case of Hobson vs. Blackburn 2, Eccl. Rep., 116. But in that case, the execution of the paper by each one of the parties to it, was clearly the consideration for the execution of it by the other; and that distinguishes the case from this.

The other case was in the 2d of Dev. & Bat. 558, and it seems to be distinguishable in the same way from this.

If, then, we confine ourselves to the mere words of this instrument, we must conclude that it is a will.

It follows, therefore, that verbal evidence going to show that it was a will, was entirely consistent with it, and was, therefore, admissible.

And that evidence once in, the case became clear beyond a doubt, that the paper was a will.- The evidence of Bozeman on the point, is so full, so minute, so simple, and every way so likely, that it is irresistible.

We think, then, that the court was right, both in admitting the verbal evidence, and in holding that the instrument was a will.

Judgment affirmed.