Cobb v. Battle , 34 Ga. 458 ( 1866 )

Habéis, J.

Had not the Legislature invested this Court with ample power to mould the judgments of the Superior Courts, when brought here for review, as in its discretion should be consistent with law and justice, this case would have been sent back for a new trial, as we can not concur in the verdict, that Pierce Bailey died testate as to all of his property; nor can we acquiesce in some of the rulings of the presiding Judge.

[1.] A moment’s reflection will show that our difference in opinion springs from the question of the admissibility of the sayings of the testator, (Bailey) to affect or characterize his own acts in the disposition of his own property, and whilst it was under his own control.

We do not intend to argue the matter; but adhereing to the principles upon which the decisions made in reference to our laws against the manumission of slaves have hitherto been placed, we think they were clearly admissible to show his intentions, purposes, and acts, — the inquiry being, under our statutes, whether the testator did attempt in any mode or by any plan or device to defeat the policy of those statutes.

It has been the uniform interpretation of this Court, of the statutes relative to emancipation, that any act or contract of a testator for the purpose of evading these acts, is, of itself, enough to make so much of it void as is illegal; and so of his will: the same rule is applied, also, to parol gifts or trusts for such purpose.

The declarations of the party, whenever made, have been held sufficient to prove the intention. The ease in 6 Ga. R., as will be seen by reference to it, went so far -as to allow the opmions of the executors of King to go to the jury as evidence of King’s intentions, though they were based on no knowledge of, or declaration of intentions by King to them. A fortiori, would not King’s sayings as to his intentions have been better evidence ?

From what has been said, it must be aparent that we can not assent to the following charges of the presiding Judge in this case, viz:— ,

“ That the declarations of Bailey before or after the makiug of the will, can not prove or establish any trust, secret or otherwise, unless it be shown that Battle became a party to said trust by other evidence than the sayings of Bailey ; that it is not competent to prove that fact' by his sayings, and that you will not consider them for that purpose ; - that it is neqessary that the proof should show the terms of the trust or agreement, so that we may determine whether it was in contravention of- the statute, or not; and that to constitute a secret trust in devisees of land or legatees of slaves, there must have .been some contract or agreement' or stipulation, written or parol, between them.”

[2] Harrowed down, as we have sought, to such matters as require 'notice, the mind is first directed to the will itself, to see if upon its face there is anything in contravention of our anti-manumission laws, and to what extent. Apart from the testimony, and examined without its light, its cautious and cunning phraseology is well calculated to delude, and to hurry us to the conclusion, that beneath the surface there is nothing objectionable. Yiewed in the light of the testimony, article 3d stands out from the canvass with such marked features that they will be readily recognized.

The testator, an old bachelor, under prosecution for killing a negro in 1861, sends his nephew Lawrenqe to get Mr* Bristow, an attorney, to come down and draw Ms will, and then discloses to his attorney his wish to manumit his house servant Adeline and her child Talbot, to leave with her a negro, and to set apart $20,000 for their use, — they to have the interest on the said sum, or so much as might be necessary for their support and maintenance, and for the education of Talbot, and at the death of Adeline the whole to go to Talbot. Talbot is the acknowledged child of Bailey, and is six-to eight years old.

Bailey had been heard to say, frequently, he would be glad to free Adeline if he could fix it, and give her $20,000.

Bailey’s wishes are thus, by ’his own saying before the making of his will, very clearly disclosed.

He is advised legally, that by will he cannot make such provision for them as he desired; that if they -were embodied in a will, such part or clause would be set aside.

Anxious that his will should stand, “ he wanted nothing put into it that would tend to break it.” Finding that such provision as he wished for Adeline and Talbot could not be made in the will, he then directed his will to be drawn, giving all his estate, including Adeline and Talbot, to Lawrence Battle. This was in the summer of 1861.

In December, 1861, Bailey said, Lawrence Battle had promised to carry out his designs, by letting Adeline and her boy do as they pleased, and giving his boy a good education, and giving them $20,000.

In 1863, a short time before his death, he said to another witness, that Lawrence had promised to carry out his wishes.

Since the execution of his will, we have the statement of Bailey, that having been informed that his intentions as to Adeline and Talbot could not be embodied in his will, he would have to tyust some one outside of his will with his purposes, and having more confidence in Lawrence Bajttle than any one else, he had obtained his promise to carry out his designs.

Let us now subject article^ to a clear examination. “ As my house servant Adeline and her child Talbot have been good, trusty, and faithful servants to me, it is my wish’and desire” — the qualti'es given to these slaves are always appreciated, and deserve recognition as proper motives to indulgence ; but how can they be applied with truth to a boy of six years of age ? The ascription of such traits as trusty and faithful, is not simply false: they were used here to conceal the true motives of testator. Those motives are found in the fact that Adeline was his mistress, and Talbot was his child.

“It is my wish and desire that Adeline shall not be separated from her child Talbot.” In this there is a restriction of the right of the person to whom they were given, as owner, and is a circumstance indicative of design in testator to make Lawrence Battle only nominally master.

“ It is my wish that my said nephew, to whom I give them, shall treat them kindly, and see that they are as comfortably provided for as their conditions in life, and their conduct and behavior, will justify.”

This clause seems unexceptionable, and, by itself, would seem to be an injunction of mere humanity and of law; but why was not the same duty imposed as to all his other slaves — why discriminate in favor of these two ? The reason has been given.

The solicitude of the testator for these slaves does not stop here. The executor is further enjoined “to treat them just as he (the exector) may at all tiones thunk the testator would treat them if vn life.” The executor lived in the house of Bailey — had lived with him for years ; he must have seen the intimacy which existed between Bailey and Adeline; he must have known, what so many others knew, that Talbot was his child. With full knowledge of these relations and the invariable relaxation of dominion that attends such connections, this executor, a man of business habits and intelligence, and having the entire confidence of testator, who had given him the bulk of his large estate, could understand the language last quoted from the will but in one way. Interpreted by the testimony, it amounts substantially to this: “ I have given to you Adeline and Talbot nominally as slaves, but they are to be treated by you as if really free; I have given you $20,000, in trust for them; they are to be maintained out of its annnal income, $1,400, without being put-to any labor, or you to any expense in their behalf; their future is to be as uncontrolled as it has been; I raised Adeline to an equality with me; she became my mistress, shared my bed, is the mother of my child; she has my entire confidence, rules and orders my house, and bears the insignia of the wife in her girdle; they have my love, and demand my care for them in the future; I rely upon your promise to execute my purposes in reference to them; you must treat them just as, from your knowledge of all these things, you, at all times, must think I would, were I in life. This confidence I repose in you, because you are my nephew to whom I have given everything except the provision in your hands for them, and of your promise to me to carry out my intententions — these give me full assurance that my confidence in your honor and gratitude is not misplaced, and that you will not disappoint my expectations.”

Oan any one fail now to perceive a meaning in the 3d article, which, without the testimony, was dim and indistinct ?

[3.] Angtds latet m herbam. We might safely say that a trust is covered up in this third article; but the case does not require us so to decide. Bailey’s statements sufficiently established a parol trust, as to placing Adeline and Talbot in a condition at variance with then existing laws, and setting apart $20,000 of his property as a provision for them. That trust is void; and there is, therefore, an intestacy as to the sum of $20,000.

Whilst writing out this opinion, it has been suggested that the caveators did not, below, arguedhe illegality of the trust as to $20,000 for Adeline and child. This may have been so; but we confess we cannot well comprehend any argument against the entire will, “ as one scheme,” that does not lay its foundation in the attempt of testator to place Adeline and child in a condition unauthorized by law, and making this provision for them. They sought to affect the entire will, by insisting that the legacy to Lawrence Rattle was solely the fruit of an illegal consideration — his promise to give effect to Baileys’s purposes concerning Adeline and child. To support this line of argument, they were logically compelled to maintain the existence of such parol trust; and whilst it did not cover theirwhole ground, it was, of necessity, included.

The caveators took the' ground, “that though the will should be unobjectionable on its face, and seemingly consistent with law, if, in the progress of the trial, facts enough are proved going to show that the testator attempted to violate the laws against the manumission of slaves, the whole will must be taken as one scheme, and is, therefore, wholly void.” We cannot assent to this position as law. The correct rule is, only so much of the will is void as is clmrkf invol/ved m the attempted violation of the laws against manumission. It can not be regarded as one scheme, in the sense of our legislation, unless it has that unity in purpose, so'as to make all its dispositions connect themselves with a manumission project, or, are made to aid it or depend upon it.

If, however, the idea was, that the entire will was void because the legacy given to Lawrence Battle was upon the sole consideration of his having promised to carry out Bailey’s scheme as to Adeline and child, that is distinct and tangible; and if the whole testimony, considered together, was conclusive in establishing that to have been the sole controlling motive for the legacy, it would bring up the important question, whether a legacy given solely upon the consideration of a promise to do an act merely / malum prohibitum, was void or not..

Caveators, to prove that it did constitute the sole consideration for the legacy, rely on the testimony of Allen and Curren Battle. The first makes Bailey say, “ that, for the reason that Lawrence had promised to carry out his designs by letting Adeline and his boy do as they pleased, and giving his boy a good education, and giving them $20,000, he had given thebalance of his property to him.” The last represents Bailey as saying, in 1863, a short time before his death, that he had made arrangements for Adeline and child-, but that it had cost him all of his property to get Lawrence Battle to do it.

[5] Whilst Allen makes Bailey to state as above, the motive which induced the legacy to his nephew, it ca^ not escape observation that afterwards, in answer to an interrogatory, as appears by the bill of exceptions, he says “ he has given, in substance, what passed between Bailey and-himself about making his will, and what his object and purpose .was.” From this we can draw no other conclusion than that he does not pretend to give the words of Bailey, but simply to express the substance, as he understood it.

Curren Battle makes Bailey say, it had cost him all of his property, etc., but adds that Bailey said oth&r things about the matter, but does not now remember what they were. Here, instead of giving all the conversation of Bailey touching Adeline and her child, what Lawrence Battle promised, what exacted, when it happened, etc., they are omitted, and the “ other things about the matter” are not remembered. Can mudh value be given to the testimony of a witness whose memory is so faulty ? In estimating it and in getting at exact truth, who does not see the importance of all that Bailey said' about the matter, in this conversation, being fully stated ? How often, in human affairs, has it occurred, that the change or omission of a word, the substitution of the definite for the indefinite article, has given a meaning to what is represented as having been said, widely different from what was actually said? ITow- often, also, has it happened, that the recital of a part of a conversation, the picking out, as it were, of a sentence, separating it from its context, has distorted the whole idea and given to it a coloring that is false ?

Is it not utterly unsafe to act, in affairs of moment, upon testimony liable to such, palpable objections ? This witness stands in an attitude, moreover, which can not but affect his credibility: he was not on friendly terms with the legatee; 'he had, also, been active in getting up evidence for the caveators ; he had accompanied counsel to see witnesses, and had shown a partisanship which makes his testimony obnoxious to severe and just criticism.

In reference to Allen, it should also be borne in mind that it was shown that Bailey had no confidence in him; and, consequently, the inference was legitimate, from the fact that Bailey would not unbosom his heart freely to such a man.

[6] The testimony as to how Bailey regarded Allen, was resisted by caveators; and its admission below has been made a ground of alleged error. We see no proper ground for its exclusion: it did not fall within that of impeaching a witness which goes to the utter discrediting him. It sought to show the relations between testator and witness, that the jury might consider “the value of his testimony, according to them. Evidence of friendship, or hostility, or relationship, of confidence or distrust, seems to us to be clearly admissible : without their being shown, a frequent result would be that juries would be compelled to give full credit to a witness whom the opposite side was unable to impeach by showing that he was unworthy of being believed at all, — a task always of delicacy and difficulty.

[7] Subject to the disparagements which we have mentioned, as is the testimony of these witnesses, their convincing force, their probative quality, is almost entirely destroyed by the improbability of the promise of Lawrence Battle being the sole motive for the legacy.

We can not, as it is so contrary to any knowledge we have of the conduct of men generally, realize the idea urged by caveators, upon the testimony of Curren Battle, that Pierce Bailey was under the necessity of giving to his nephew near $150,000 of property, to get him to act as nominal owner of Adeline and child and to hold in his hands $20,000 for their use; or, in other words, he was bribed, by this very large legacy, to do an illegal act. The performance of what Bailey desired could have subjected his nephew only to the payment of a penalty of $1000, upon conviction, but to no punishment. It would have been a mere violation of municipal policy: it would not have been an act mal/am in se, and therefore without moral guilt. Thus considered, is it not calculated to excite such a degree of astonishment as to produce incredulity, to be told that a man who had for years been an inmate of his uncle’s house, known the intimacy of the master and the slave, and who had nosed daily the filthy sty, should suddenly start up and exact from that uncle all the balance of his property, before he would give his consent to carry out his uncle’s wishes? The thing has so little semblance of probability on its face that we can not give it entertainment. The other sayings of Bailey, running through four years, are to be considered in connection with these; and from the whole are we to extract the truth.

We are told by a witness of caveators, that he had heard Bailey say he had made over his property to Lawrence because he was under prosecution, or about to be prosecuted, for killing a negro. The instrument referred to was evidently this will. Surely, if Bailey made this will from that motive, the legacy could not have been given for the reason insisted on. Ignorant men pressed by pecuniary embarrassment, security-ships, and criminal prosecutions, resort to plans of this kind to avert present or anticipated trouble. If this will was made from such motives, we are impressed with the conviction, that Bailey’s heirs at law would find it difficult, on that ground, to prevent the will from going to probate.

The fact mentioned by this witness has its importance in the ascertainment of Bailey’s Intention; though, we are not inclined to let the dispositions of the will rest upon it alone. The intentions and motives of Bailey in making this will are to be collected from all the facts in the case. Bailey’s attachment to his kindred, in general, appears to have been weak. His only sister, the mother of executor, with a daughter and younger son, were living on Ms land, and, to some extent, objects of Ms care. For caveators he had no affection whatever: he suspected the sincerity of the attentions of some of them, as far back as the -year 1853, saying, they would not have visited hin but they knew he had negroes. Again, to Mr. Bristow, the attorney who drafted the will, that he would not give to any of the rest of ;his kin, except Lawrence, “ a durned cent,” unless to prevent his will being broken. At no time, for years, is there any evidence that any of his kindred, except Lawrence, had any hold on his regard.

For Lawrence, however, his favorite nephew, near in blood, (none nearer except Lawrence’s mother) he had strong partialities; he had lived with him; had attended to his business ; was careful and thrifty, and would take care of what he had, and what he got; and to an old money-lender, and avaricious, like Bailey, and whose sole ambition was accumulation, what legatee so likely to suit such a man, as was his nephew, Lawrence, to whom he was accustomed. Affection is most always the result of such intercourse, and to an old man a necessity.

Bailey’s sayings before the making of his will, to Hubert and Bristow, show his purpose to make Lawrence his legatee; to Ivey, afterwards, that he had given his property as he wa/nted it to go, and evincing most clearly his fixed design: the fact, testified to by Pittman, of Bailey advancing $1,200 to Lawrence to buy a negro, and directing him to take the deed in his, Lawrence’s, name, as all belonged to him.

Sifting the whole record, closely observing the character of Bailey as developed by it, and analyzing the testimony as best we could, visible, and heard only on paper, and therefore rendering it impossible for us to estimate the credibility of the witnesses with accuracy, we have arrived at the conclusion that the testator was influenced by mixed motives, partly legal and partly illegal, in the making of his will — illeegal only as relates to the position in which he sought to place Adeline and Talbot, and the provision for them, outside of the will, of $20,000 in the hands of Lawrence Battle.

[8.] It was argued with earnestness and plausibility, on the part of the propounders óf the will, that, conceding that it was the design of Bailey, at the time of making his will, to emancipate Adeline and child, still, as slavery had passed away in Georgia, contracts, deeds, and wills in favor of slaves, once void under State policy as endeavoring to effect emancipation, have, in consequence of the present status of the negro, been divested of the illegality which had attached to them ; and that if this was true, it was the duty of the Courts to give effect to all such instruments.

We cannot assent to this as either a just or legal principle. If the principle was correct, looking to the consequences which would ensue from its recognition, we would give much further consideration to it than we have, and explore it in all its bearings, before according it our sanction. We refrain from specifying them. Inoedwms per ignes sv/ppositos oineri doloso; it is enough dimly to indicate the direction in which lie innumerable perils.

Whilst it is true that the recognition by the convention of Georgia, in November, 1865, of the abolition of slavery, thenceforth swept away, at a blow, all laws in reference to negroes as slaves, their freedom began then: it did not, by that alteration of the State Constitution, acquire any relation back. If this is so, it is unquestionable that, at the death of Bailey, these slaves had no legal capacity to take or receive property by devise or otherwise: they can not, therefore, by their change of status, be entitled to the benefit of the parol trust of $20,000, made in their behalf. We dismiss this branch of the argument, with the simple expression of our opinion, that if any portion of the will of Bailey was made in violation of the laws of force at the time, or any parol trust or agreement in contravention of those laws, no act of the Convention, or of the Legislature since, has made valid any will, devise, deed, or other instrument or trust, which was before void.

[9] Having thus presented the view we entertain of this case, it is proper that we assign distinctly the reason which influenced us not to award a ne,w trial. This opinion shows that we differ essentially with many of the rulings of the presiding Judge. We do not doubt but that if the sayings of Bailey had been permitted to go to the jury, with full liberty to consider and act on them, that the verdict would have been different: they possibly might have set aside the whole will as illegal. Had this qccurred, we would have felt bound to have granted a new trial; as such a verdict would not have accorded with the truth and justice of the case. The caveators could then have gained nothing by a new trial: they gain, however, by our judgment here, all that we think they are entitled to; and the propounder loses an advantage which we can not allow him to hold.

Convinced, as we are, that there was a parol, or secret, trust as to Adeline and child and the provision for them of $20,000, and that that sum is included in the legacy to Lawrence Battle, the verdict given was erroneous, in declaring Bailey to have died testate as to all his property: it should have been a finding in favor of the will, except as to that sum in the hands of Lawrence Battle, and that, as to it, he died intestate.

We do not deem it necessary to order a new trial because • the verdict is erroneous; but direct that the circuit Judge cause, by his order, the Ordinary to conform his judgment to this opinion, to wit: that Pierce Bailey died testate as to all his property except $20,000 in the hands of Lawrence Battle, as a trust for Adeline and child; and that, as said trust is void, that Pierce Bailey died intestate as to that amount, and that administration should be granted by the Ordinary to some one of the next of kin, other than Lawrence Battle,— as the money is in his possession, — that it may be collected , and distributed according to law.