Elder v. Ogletree , 36 Ga. 64 ( 1867 )

Harris, J.

The ordinance of the Convention, in November, 1865, applies in terms to contracts unexecuted (within two named periods) and were it to be strictly construed, no evidence whatever touching wills and other transactions, which do not technically fall within the denomination of contracts, as to currency, its value &c., could be admitted. Its spirit and intention was to include all transactions involving money or its representative, and to ascertain the truth of every agreement or design. And hence, as the defendant below was allowed to prove that, at the time of the making of the will, Confederate treasury notes wras the prevailing currency, we think that the Judge erred in not permitting their value in market at the residence of testator to be given in testimony.

It is palpable, in considering closely the ordinance, that the Convention must have deemed the expression “dollars” in notes, accounts, etc., to be ambiguous in meaning, as carrying a doubt along with it as to what was meant, currency or gold and silver, or they would not have permitted the wide range they have in trying to arrive at the truth of every transaction at the time of it, and what was intended. We -would not be understood as saying that because a depreciated currency had supplanted a better one, the worst was meant. Far, very far from it. We leave this to be settled upon testimony, positive or circumstantial, by the Jury. The many clauses of the will,, the various sums of money to be paid to legatees so as to adjust and equalize their shares, (it being the general presumption that such is the wish of every parent, unless the contrary is distinctly exhibited) furnish means from which an intelligent jury can collect, with pretty great certainty, what the testator meant, whether he meant gold or currency.

There was error in suffering Mr. R. B. Andrews, who was not a subscribing witness to the will, to give Ms opinion as to what testator meant. The fact thathe was the amanuensis in drafting the will, does not, under the rules of evidence now existing, sanction his giving his opinion; he can testify as to facts only.

Judgment reversed.