1. Where a legatee in a will filed in the court of ordinary a petition praying that the administrators with the will annexed be cited to make full settlement of the estate with the legatees, and, pending an appeal to the superior court from the judgment of the court of ordinary thereon, and before the appeal came on for trial, the same legatee filed an equitable petition in the superior court alleging that the administrators wrongfully refuse to assent to his legacy and are wrongfully charging barred open accounts against him as advancements, and praying in the equitable petition that it "be made a part of the citation proceedings," that the will be construed and accounts claimed against him as advancements be held to be barred by the statute of limitations, and that the administrators be directed to pay him his distributive share of the estate, and where the court prior to the trial of the appeal case sustained a general demurrer to such equitable petition, such ruling could be reviewed only by a direct bill of exceptions timely filed in that case, and will not be considered under an assignment of error in exceptions pendente lite entered in the appeal case, in which appeal proceeding no effort had been made to consolidate that proceeding with the suit in equity, notwithstanding an assignment of error in the bill of exceptions, filed in the appeal case a year later, based upon the exceptions pendente lite. Accordingly, the exceptions sought to be taken to the previous order sustaining the demurrer to such equitable petition can not be considered in connection with or as a part of the exceptions taken to the case tried on appeal.
2. The judge charged the jury as follows: "I charge you further — the existence of the fact testified to by one positive witness is to be believed rather than that such fact did not exist because many witnesses who had the same opportunity of observation swore that they did not see or know of it having existed or having transpired. This rule does not apply where, the parties having equal facilities for seeing or hearing a thing, one swears that it occurred, and the other that it did not. This is the rule as to positive and negative testimony. The jury has heard the testimony of the witnesses and will consider this rule in passing upon their credibility." Error is assigned on this charge as being prejudicial because the court failed to qualify it by an instruction that this rule is not applicable unless other things are equal and the witnesses are of equal credibility, citing Southern Railway Co. v. *Page 517 O'Bryan, 115 Ga. 659 (42 S.E. 42); Id., 119 Ga. 147 (3) (45 S.E. 1000); Atlantic Coast Line Railroad Co. v. O'Neill, 127 Ga. 685 (2) (56 S.E. 986). This charge is virtually in the language of the Code, § 38-111; but is subject to the criticism made unless qualified with respect to equal credibility, as held in the above cases. While "a general assignment of error upon a designated portion of the judge's charge will be considered for the purpose of ascertaining whether or not the particular language thus complained of states a correct abstract principle of law," and while, "if an instruction, excepted to in general terms, be erroneous because it is not a correct or accurate statement of the law, then, as all error is presumably prejudicial, the record will be examined for the purpose of ascertaining whether or not the party complaining has really been injured by the giving of such instruction" (Anderson v. Southern Railway Co., 107 Ga. 500 (4 b), 33 S.E. 644), since a new trial is to be granted on other grounds the court will not examine the record to ascertain whether the movant has really been injured by the giving of such instruction.
3. The movant excepts to the admission over his objection of the testimony of one of the administrators that the two indicated returns of the administrators, made to the court of ordinary and introduced in evidence, were correct, and that, as indicated, a disposition of the estate had been made except the disbursement of $2200 and the payment of commissions and court costs; the objection being that this testimony was irrelevant and immaterial on the issue as to whether the disputed item charged against the movant should be treated as a debt barred by the statute of limitations or an advancement. It is urged in the movant's brief that it was harmful and prejudicial to the plaintiff for it to be made thus to appear by the returns (the admission of which in evidence was not objected to) that all of the other heirs had accounted for the items charged to them, whereas, under the contention of the plaintiff, the only question was whether the item charged against him was an account which was barred or was an advancement. This being a petition by the movant against the administrators for an accounting and settlement, manifestly their returns would properly be placed before the court, and the testimony of one of the administrators that they were correct could not be taken as irrelevant in such a proceeding, the effect of such testimony going only to the extent of showing that the returns properly set forth the acts and doings of the administrators, and did not relate to whether or not their acts and doings should be construed as legal and authorized.
4. In this State, unless a will makes provision for the payment of advancements (Treadwell v. Everett, 185 Ga. 454 (2), 195 S.E. 762, and cases cited), the law of advancements applies only in cases of intestacy. Robinson v. Ramsey, 161 Ga. 1 (1 b), 4 (129 S.E. 837). Where a will contains the following language: "I have already given to Mollie E. Moon $150 as advancement from my estate. As my other children become of age or marry I will [give?] them advancements, and will keep a record of the same, which record I desire my executrix or executor to be guided by [in] a division of my estate." such will evidences the intention that advancements shall be accounted for. *Page 518
(a) "An advancement is any provision made by a parent out of his estate, for and accepted by a child, either in money or property, during his lifetime, over and above the obligation of the parent for maintenance and education. Donations from affection, and not made with a view to an accounting, nor intended as advancements, shall not be accounted for as such; nor shall the support of a child under the parental roof, although past majority, nor the expenses of education, be held as advancements, unless charged as such by the parent." Code, § 113-1013. "A memorandum of advancements, in the handwriting of the parent, or subscribed by him, shall be evidence of the fact of advancement, but shall not be conclusive as to the value of the property, unless inserted as part of testator's will or referred to therein." § 113-1014.
(b) Under the Code sections just quoted, a proved memorandum in the handwriting of such a testator with respect to the transfer of money or property which shall have been actually made is, when designated as an advancement, conclusive evidence of its character as such, but does not constitute the only method by which advancements can be proved, and therefore does not preclude proof of other advancements. This is true because such evidentiary memorandum does not constitute a part of the will, and is not executed with the same solemnity. See Bransford v. Crawford, 51 Ga. 20 (2), 22; Sims v. Sims, 39 Ga. 108 (2), 117 (99 Am. D. 450).
(c) A controverted declaration in writing, which was made after the death of the father by a child, that he was "due" his deceased father a stated amount for stock and money, and which as an account would on its face be barred by the statute of limitations, would, if such admission be established as true, have probative value only as to the fact that he had received such an amount from his father, but a self-serving declaration that it was a debt owed to his father and not an advancement would not establish the nature and character of the transaction.
5. There being no evidence as to the nature and character of the item referred to in the preceding division of the syllabus, and there being no proved facts or circumstances such as would support a presumption in favor of an advancement, the finding in favor of an advancement was unsupported by the evidence.
No. 15206. JULY 3, 1945. The syllabus deals with all the special assignments of error which have not been expressly abandoned, or which have been insisted on either generally or by argument of counsel. Only the ruling in the 5th division of the syllabus, relating to the general grounds, would seem to need elaboration. The judge charged, and counsel on both sides conceded *Page 519 at the trial and in their briefs, that the only point in controversy is whether an item of $1554.27 should be charged against the plaintiff in error as an advancement. The plaintiff in error disputes this item altogether, but contends, and correctly so, that if it be taken as an account it is barred by the statute of limitations. He admits what he calls an account against him in the sum of $2483.46, which he says is barred by the statute of limitations. This item, together with other items against other children, was apparently taken from the ledger, and according to the administrator's evidence was pinned to the will book by him after the father's death. As stated, however, this item is not claimed against the plaintiff in error as an advancement. The brief of evidence apparently conforms sufficiently to the rule as to briefing, and contains the evidence as adduced at the trial; but it has been difficult to determine from the record just what was or was not proved with respect to the $1554.27 item in dispute. It appears that the decedent kept four different books, a "ledger," a "bank book," an "invoice book," and a book which the evidence speaks of as a "will book." In the testimony there are repeated references to papers or transcripts from these books, and there is in evidence what appears to be transcripts taken from one or another of them. The testimony might easily have been clear enough to the jury, but there are in the brief of evidence no less than fifty references to books, papers, or transcripts, without indicating just what book or paper was referred to, or without any effort at identification other than by a statement by the interrogator such as "this book" or "this paper," "indicating it," which is in no way indicated in the record. The plaintiff in error says in his brief that the $1554.27 item is not embraced in the will book made by the decedent, and this appears to be correct, as evidenced by the transcript therefrom embodied in the record. He also says that in point of fact no item other than several $150 items were in fact charged on the will book, and this is in no way disputed by the defendant in error, and may be correct; but what purports to be a transcript from the will book as embodied in the record shows other and different large items to the various children, including what may be the item referred to as $2484, as follows: "J. M. Kaylor 5/29 Act on 1930 book $2483.46." But, as already indicated, the evidence of the administrator seems to indicate that these items were *Page 520 pinned into the will book by him after the death of the father, and as has been stated, this item is not claimed to be an advancement. The $1554,27 item in controversy appears on a transcript apparently taken from the "ledger" or "invoice book." It is headed, "Invoice of stock of J. M. Kaylor Jan 6, 1931." The last item on this transcript is as follows: "1/1 1931 due J. L. Kaylor stock money 1554.27." The administrator in his testimony swore that the other items on the ledger, as embraced on the invoice sheet were in the handwriting of the decedent, J. L. Kaylor, and that the plaintiff in error, J. M. Kaylor, had admitted to him that he (plaintiff in error) had added it to the invoice after his father's death, and that he owed that amount. This evidence by the administrator was more or less weakened on cross-examination, and is disputed by the plaintiff in error. The evidence is in conflict as to how the lumber business was operated for a year or more prior to the father's death in 1932. The defendant in error claims that the invoice was dated at the time that J. M. Kaylor, the plaintiff in error, took over the business from his father; while the plaintiff in error, J. M. Kaylor, contends that he was then operating it for his father on commission. It would seem that the evidence for the defendant in error (though disputed) might be sufficient to establish by the admission of the plaintiff in error that the $1554.27 was a proper charge. But is it sufficient to show that it constituted an advancement? The only proof of this disputed item is the proved admission of the plaintiff in error that he entered it on the invoice sheet and that he owed it. The item does not indicate itself to be an advancement, but a sum "due" for stock and money; nor is it contended that the plaintiff in error admitted it as an advancement. While it is the duty of the movant to show error, and where a case is brought to this court upon "a confused and mixed record, any inability to decipher the questions made must fall upon the plaintiff in error" (Simpson v. McBride,78 Ga. 297; Beavers v. Mabry, 195 Ga. 169, 173,23 S.E.2d 672), there appears to have been no proof submitted that the item, established only by the alleged admission of J. M. Kaylor that he owed that much on account, went to him as an advancement. There are decisions to the effect that "a gift of property by a father to his adult son who is married and does not live under the parental roof is presumed to be an advancement." Neal v.Neal, *Page 521 153 Ga. 44 (3) (111 S.E. 387); Code, § 113-1013. Here, however, there was no proof that the plaintiff in error received the disputed item while "under the parental roof, although past majority," as provided in the above Code section. Since the only proof of the item is an alleged but disputed admission by J. M. Kaylor, the plaintiff in error, as an account which was due his deceased father, which is manifestly barred if treated as an account, and since the record contains no evidence going to show that he received it as an advancement, although omitted from the memorandum of the advancements as made by the father, which the jury had the right to consider as a circumstance to the contrary, and since no foundation was laid such as might authorize a presumption that it was an advancement, the verdict appears to be unsupported by evidence. The only treatment of the general grounds in the brief of the defendant in error is as follows: "It is manifest that it was the intention of the testator that such gifts be applied to reduction of each child's general legacy, and therefore it was in the nature of an advancement. It is obvious in the reading of the will that the testator makes provisions for such advancements, and they were to be so treated as advancements, as it plainly and manifestly appears from the terms of the will." On another trial, the jury may, if it decides that the plaintiff in error received the amount in controversy, consider all the evidence then placed before it on the question of the nature and character of such payment. If evidence should be adduced such as would establish a presumption in favor of an advancement, such presumption not being conclusive, they could still consider any proved relevant fact and circumstance both for and against the truth of such a presumption.
Judgment reversed. Bell, C. J., Duckworth, Atkinson, andWyatt, JJ., concur.