A testator, who had named his sister as one of his legatees, executed and delivered to her a promissory note for a stated sum of money, which was later paid to her, the testator himself paying a part of it and his executor paying the remainder. Thereafter, in a suit between her and his executor, it was contended by the latter that the giving of such note and its payment constituted an ademption of the legacy. On the trial, a verdict was returned in favor of the legatee and against the executor. The executors' motion for a new trial was overruled, and he excepted. Held, that the question as to whether or not there was an ademption depended solely upon the intention of the testator at the time he executed and delivered the note, and the fact that the payee, in accepting a check from the executor for the balance due thereon, had no intention to satisfy her "rights under the will," was immaterial.
(a) The evidence as a whole demanded a finding that there was an ademption of the legacy; and, the verdict in favor of the legatee being thus contrary to the evidence and without evidence to support it, a new trial should have been granted on this ground.
No. 15289. JANUARY 8, 1946. This is the second appearance of this case. See Roberts v.Wilson, 198 Ga. 428 (31 S.E.2d 707).
W. M. Wilson died leaving a will, in which he bequeathed the income from all his property, both real and personal, share and share alike, to his wife, Mrs. Malvia Wilson, and his sister, Cecil Wilson, for and during their natural lives; and provided further that, upon the death of either, the proceeds of his entire estate should go to the survivor for and during her natural life. The *Page 202 material portions of the will are stated in 198 Ga. 428 (supra).
The testator named his wife, Mrs. Malvia Wilson, and J. W. C. Roberts as executors. Both qualified and acted for a time, but Mrs. Wilson died before the present case arose. The case originated in the following manner: An automobile was being advertised for sale by the surviving executor as the property of the estate. Cecil Wilson filed a claim, which was duly transmitted to the superior court. Thereafter she filed an ancillary petition, seeking construction of the will and other relief, and contended that under the will, Mrs. Wilson having died, she as the survivor owned a life estate in all the property. The executor filed an answer, and certain remaindermen intervened. It was contended by the executor and the remaindermen that the testator, after executing his will, adeemed or satisfied the legacy to his sister by executing and delivering to her in lieu thereof a promissory note in the sum of $1000, the amount of which had been paid to her. The note, so far as here material, was as follows: "Calhoun, Ga., July 11, 1939. On the first day of January, next, I promise to pay to the order of Cecil Wilson $1000. . . This note is given for services rendered to me and my son, deceased, by the one this note is given to, and, when this note is paid, it is payment in full of all demands against me and will not be entitled to share in any income of my property after my death. W. M. Wilson."
The executor also pleaded a receipt, purporting on its face to have been signed by Cecil Wilson, and contended that this receipt showed that the note was delivered in satisfaction of the legacy, the receipt being in form as follows: "Resaca, Ga., July 10-1939. Recd of W. M. Wilson one note for $1000 (one thousand dollars), payable on Jan. 1-1940, and when this note is paid I have recd. all that I am to receive out of his estate and am not to receive any of the income of his estate after his death as provided in his will, as this is in place of it. Cecil Wilson."
On the first trial of the case, the judge directed a verdict in favor of the claimant. The judgment was reversed on the ground that the evidence did not demand such a verdict.
On the second trial, the only question submitted to the jury was whether payment of the note in question operated as a satisfaction of the bequest to the payee, Cecil Wilson, it being her contention that the note was given to her for services rendered and for no other *Page 203 purpose. She insisted also that she did not sign the paper referred to as a receipt. The jury found in favor of the claimant or legatee, that is, that such note and its payment did not satisfy the legacy. Thereupon the court entered a decree that "the claimant, Cecil Wilson, has a life estate in the property of the testator," except as to $500 bequeathed in trust as a cemetery fund, and directed the executor to deliver "all the balance" of the property to her.
The executor and intervenors filed a motion for a new trial on the usual general grounds, to which a number of special grounds were added by amendment. The motion as amended was overruled. The movants also filed a motion, alleging that the assets included cash and collectible notes in stated amounts, and praying "that said order and decree . . be amended . . and that Cecil Wilson be required to give good and solvent bond before any of the money or notes belonging to said estate be surrendered or turned over to her by the executor of said estate." The motion was overruled, and the movants took exceptions pendente lite, on which error was assigned in the final bill of exceptions.
On the trial, the claimant introduced in evidence the will under which she claimed the life estate; also a deed executed by the testator to the claimant, dated May 20, 1939, and conveying his one-third undivided interest in a tract of land known as the Bird Wilson home place, reciting as consideration "five dollars and love and affection." The executor introduced in evidence the note for $1000, the receipt above described, and also a check for $1018.01, signed by the executors and payable to the claimant, for the balance of principal and interest due on the note, a small payment having been made by the testator; which check was marked paid, and the proceeds of which the claimant admitted receiving. The brief of evidence contained photostatic copies of the note and the receipt, showing that the last sentence in the note and the entire receipt were in handwriting.
The claimant testified in her own behalf and introduced several other witnesses. J. W. C. Roberts (executor) and another witness testified for the executor and the intervenors.
The claimant was permitted to testify over objection as follows: Question: "I will ask you whether or not at the time you accepted the check was it your understanding and your intention to satisfy your rights under the will?" Answer: "No." As shown by the *Page 204 approved brief of evidence, she also testified as follows: "Yes, I sure know my brother's handwriting, and I guess I know my handwriting. Looking at that receipt, as to whose handwriting it is, well, it isn't mine. I guess it is Mr. Bill Wilson's handwriting. . . The first time I ever saw that paper (receipt) was a while ago when they showed it to me."
J. W. C. Roberts (surviving executor) testified: "The receipt which was offered in evidence a while ago, the original receipt, was attached to the will. The receipt was in Mr. Wilson's handwriting."
In the view taken by the court, as shown in the following opinion, none of the other evidence need be stated. W. M. Wilson died leaving a will, in which he bequeathed the income from all his property, both real and personal, to his wife, Mrs. Malvia Wilson, and his sister, Miss Cecil Wilson, or to the survivor. After the wife's death, Miss Wilson, as survivor, claimed a life estate in all of the property. This claim was resisted by J. W. C. Roberts as executor, and certain intervenors, on the ground that the testator had adeemed or satisfied the legacy to his sister by delivering to her in lieu thereof a promissory note in the sum of $1000, which was subsequently paid to her. She contended that the note was given to her for services rendered and for no other purpose.
The jury found in her favor, and the executor and the intervenors excepted to the overruling of their motion for a new trial. For other pertinent facts, see the statement preceding this opinion.
After a careful study of the case, we have reached the conclusion that the verdict for the claimant was contrary to the evidence and without evidence to support it, and therefore that a new trial should have been granted on the general grounds. In this view, it is unnecessary to deal with other questions.
While the plaintiff introduced evidence as to the character and extent of the services rendered by her to the testator and his son, since deceased, and also testified as to her own intention at the time of accepting the check from the executors for the balance due on the note, yet, in view of other facts that were shown without dispute, *Page 205 such evidence as to the services and intention of the claimant would not, whether considered alone or in connection with the other evidence, support the verdict in her favor. The issue for determination was whether there had been and ademption or satisfaction of the legacy, and, under the undisputed facts of the case, this issue would depend upon the intention of the testator at the time he delivered the note, the same having been subsequently paid according to his intention. Since the legatee did accept the note, and later accepted the check in final payment of it, it was altogether immaterial whether, in accepting such check, she intended to satisfy her "rights" under the will.
In Beall v. Blake, 16 Ga. 119 (2), 131 it was held that whether a specific legacy, if not illegal, has been adeemed or not, depends on the intention of the testator, the ademption there being conditional. The decision in that case was rendered before the adoption of the Code of 1863, which contained, as sections 2431 and 2432, the provisions as to ademption that appear in the present Code as sections 113-817 and 113-818. The first of these sections provides in part: "A legacy is adeemed or destroyed, wholly or in part, whenever the testator delivers over the property or pays the money bequeathed to the legatee, either expressly or by implication, in lieu of the legacy given." InLang v. Vaughn, 137 Ga. 671, 678 (74 S.E. 270, 40 L.R.A. (N.S.) 542, Ann. Cas. 1913B, 52), it was stated that the language in Beall v. Blake, supra, was broad; and that, "When the law of this State was codified, the codifiers evidently reviewed the entire subject, and sought to lay down both the general rule and the exceptional cases."
Under these authorities, whether there has been an ademption will depend upon the intention of the testator, unless the question is controlled by some rule of law, regardless of what may have been his actual intention.
The transaction here would depend upon the actual intention of the testator, within the rule stated. Lang v. Vaughn, supra (p. 680); Rogers v. French, 19 Ga. 316 (1, 2); Weems v.Andrews, 22 Ga. 43; 28 R. C. L. 344, § 338; 69 C. J. 1004, § 2203; 94 A.L.R. 190. Since the legacy was subject to his control so long as he lived, he could therefore have made to the legatee a note, which on payment would have satisfied or discharged it, just as he could have revoked it, all without assent or approbation of the legatee. *Page 206 Ellard v. Ferris, 91 Ohio St. 339 (110 N.E. 476, L.R.A. 1916C, 613); American National Bank v. Madison, 144 Ky. 152 (137 S.W. 1076, 38 L.R.A. (N.S.) 597).
Accordingly, while the note here may have become a contract upon its delivery, it was the substitution of this note and its subsequent payment that constituted the ademption or satisfaction, if there was such in this case. Where the legatee did accept the note, and later accepted payment, no question is presented as to whether she could have prevented an ademption by refusing to accept either.
Copies of the note and the receipt are shown in the statement. Although the recitals in the note might not, without more, conclusively show an intention to adeem, yet, if the note and the receipt be considered together, and if both are also accepted as expressing the intention of the testator, they show beyond question an intention on his part that the note should, upon its payment, constitute an ademption or satisfaction of the legacy. Under the evidence, the receipt clearly referred to the note that was introduced, despite the discrepancy of one day in the dates. There is no question as to the authenticity of the note itself, although there was an issue as to whether Miss Wilson signed the receipt, her testimony upon this point being that she had never seen this paper until it was shown to her during the trial. The original of the receipt was in handwriting, as was also the clause in the note relating to the purpose for which it was given. The evidence as a whole, including the testimony of the claimant herself, demanded a finding that the receipt was in the handwriting of the testator, and the undisputed testimony of the executor showed that it was found by him attached to the will. Thus, whether the receipt was signed by Miss Wilson or not, it contained an unqualified expression of the testator as to the purpose for which the note was given, and the two instruments together showed prima facie that the testator intended for the note, upon its payment, to satisfy the legacy. Nor was there any evidence that rebutted or tended to rebut such prima facie evidence of an intention to adeem.
In 69 C. J. 1027, § 2227, it is stated: "A writing releasing or acknowledging receipt of money or property to apply against the interest of the person executing it as legatee or devisee, delivered to the testator or to his agent or his representative after his death, establishes a prima facie case of satisfaction, but this effect is confined *Page 207 to receipts which by their language indicate some connection with the legacies in the will, general receipts not being accorded such weight. The receipt need not, however, expressly and in terms refer to the contemplated legacy where it uses language broad enough, and which from all the circumstances is plainly intended to include it in its operation; and even a mere general receipt may be sufficient, when accompanied by other competent evidence, to serve as the basis for a finding that the legacy has been satisfied. Although the language of a receipt purports to be that of the donee, it shows clearly the intention or purpose to be that of the testator in making the gift or advancement, and as the donee could only receive it for the purpose for which it was tendered, the declaration of the purpose of such payment is conclusive; indeed, the only use or relevance of the paper is to show the intention of the testator, it having no efficacy as a contract, and so it is immaterial whether the donee knew of its contents or gave any actual assent by his signature." Compare Code, § 113-1014, as to evidence of advancements; and see also, in this connection, Cowles v. Cowles, 56 Conn. 240 (13 A. 414); Roquet v. Eldridge, 118 Ind. 147 (20 N.E. 733); Ellardv. Ferris, 91 Ohio St. 339 (supra).
It follows from what has been said that the verdict for the claimant legatee was contrary to the evidence and without evidence to support it, and a new trial should have been granted on this ground.
Judgment reversed. All the Justices concur.