Mims v. Ross , 42 Ga. 121 ( 1871 )

McCay, J.

1. As to the question, whether this land was given by hifather to T. N. Mims, during the life-time of the father, the jury has, under the facts, found against the gift. There was evidence on both sides and, under the rule, the verdict is not to be disturbed.

2. To make out the gift’it would require proof of présent intention to give — a complete renunciation of right, by the father, without power of revocation, and a full delivery of possession, as a gift, inter vivos. If the- act were only, an earnest of the bequest in the will — a foretaste of the bounty, to be completed at the going into effect of the will, it was no gift to pass the title. We think there is evidence to sustain the verdict upon this point, and, as we .have said so often, we will not disturb a verdict which there is evidence to sustain it.

3. Even if the legal title to this land was complete under the will, and by.the assent of the executor it was not so complete as tq'relieve it from liens upon it, whilst it was the property of the father, at his death all his property became assets for the payment of his debts. The legatees talce subject. to this charge. The lien of these judgments followed the laryQ into his hands, as they would have done into the hands/of any purchaser from the father. Can he stand in a better position than a purchaser? It would be a violation of all principle so to hold. The assent of the executor is onlyl effective, so as to bind himself. Even the executor cannot, by his assent, divest the judgment lien. He migjht, perhaps, do this by a public sale under the law, as an officer of the law, but it would be a strange doctrine to establish that an executor may, by his assent to a legacy, deprive the creditors of their interest in the assets.

Altogether, we see no error in this record. It would be grossly unfair to permit the adult child of Mr. Mima to take the legacy under this will and leave the debts of the testator, and especially, judgment debt, which the law makes of the highest dignity, unpaid.

Judgment affirmed.