Hatton v. Landman et al. delay in asserting their claim is proved by the complainants. They allege ignorance of the facts on their part, and concealment of the facts on the part of James Hatton; but this alle gation is disproved. Mr. Acklen testifies, that James Hatton, "some time in the year 1835, a short time before the date of his mother's will," had a conversation with him "relative to a tract OR TRACTS of land lying in Madison county;" and that James then stated "that the legal title to said lands was in him, but that it was purchased with his mother's money." If it is conceded that James Hatton made this statement in relation to the quartersection described in the bill, it is insufficient to support the claim of complainants, as asserted in their bill, when taken in connection with the fact that James was the son of Frances Hatton. For, when the title to land is taken to a son, and the purchase money is supplied by the parent, the purchase is deemed prima facie as intended as an advancement, so as to rebut the presumption of a resulting trust for the parent. 2 Story's Eq. Jur. §§ 1201, 1202. But the date of the will of Frances Hatton is July, 1838, which proves that Mr. Acklen makes a mistake of about three years as to the date of the will, although it was written by himself! We have no doubt of his honesty, but we have as little doubt that he is mistaken as to this date. And we believe he is also mistaken, when he says that James Hatton "assigned as a reason for that, that the wife of Samuel Hatton, from whom the conveyance was made, would not consent to unite in a conveyance with her husband to his mother, on account of some family ill-feeling, but was willing to convey to James Hatton, and did so." For it is incontestably proved that, on the very day the conveyance of the quarter-section was made to James Hatton, the wife of Samuel did unite with her husband in a conveyance of another tract to his mother! Besides this, the subscribing witnesses who are examined clearly prove that "family ill-feeling" was not the reason why the conveyance was made to James Hatton. Mr. Acklen testifies, also, that after he wrote the will, it was read over to Frances Hatton, in the presence (as he thinks) of James Hatton and James Landman; that "the subject of the land was then mentioned, as it had been left out Hatton v. Landman et al. of the will, and it was then agreed by her, James Hatton, and James Landman, that it might stand in that way, as James Hatton would do what was right between his sisters, Nancy Hatton and Mrs. Landman, after she was gone, in relation to the land." The bill does not set forth this agreement, nor claim any right under it. But, if it did, it is clear that it could not be enforced as an agreement, because it is void for uncertainty. It furnishes no means by which the court could determine "what was right between his sisters" and James, in relation to the land.-Erwin v. Erwin, 25 Ala. Rep. 236. But it is urged, that, although the agreement is void for uncertainty as an agreement, yet it is an admission that the land really did not belong to James, but to his mother. We cannot assent to that; for we cannot believe that an agreement by A., to do "what was right" between himself and his sisters, in relation to land which was held by him under a conveyance from its former undisputed owner, is, per se, an admission that the land did not belong to him but to another person.-Flagg v. Mann, 14 Pick. Rep. 481. Besides all this, it appears that the mother of James lived more than three years after her will was written and this agreement made. Why did not she, or Mr. Landman, the husband of Mrs. Landman, during those three years, obtain from James Hatton some satisfactory evidence that he did not hold the land for himself alone, but for himself and his two sisters? If to this question it is answered, that James Hatton, by his said agreement, fraudulently prevented them from obtaining such evidence, or an alteration of the will of his mother, then we reply, it is very strange that this fraudulent prevention of acts to the prejudice of his sisters, which is a distinct and clear ground of equitable relief, is not even alleged in the bill, although James Landman, one of the parties to the alleged agreement, is one of the complainants in the bill. A part of Mrs. Graham's testimony is very favorable to complainants, but another part is equally unfavorable to them. For "her understanding was, that there was no real consideration from James to Samuel, but that the lands were passed to blind Samuel's wife, so as to effect a relinquishment of dower." If this be so, it defeats the claim of the complain Hatton v. Landman et al. ants, which is by their bill grounded on the facts, that James did buy the land of Samuel, and did pay him one thousand dol lars for it; and "that the thousand dollars, so by said James to said Samuel paid for said land, was in fact the money of said Frances." If nothing was paid in consideration of the conveyance of the land to James, there could not have resulted to his mother, at the time of that conveyance, any such trust as is alleged in the bill. Mrs. Graham further testifies, that, immediately after James obtained the conveyance, he went home and informed his mother and sisters that it was made out to him, and gave a statement of the circumstances; which statement Mrs. Graham undertakes honestly to detail. She also testifies, that James then told the old lady, who was very deaf, "not to fret, it should all be right," and offered to make the title to her; and that the old lady said she knew James would do what was right. Although she knew that he afterwards claimed that the land was his own, and that he bought it for himself, and although she lived more than seven years after James had offered to make her the title, she never did take the title, but left it to James, with the unlimited and undefined discretion of absolute ownership in him. She practically disclaimed and renounced any and all right of disposi tion, control, or ownership over it, and actually refused to take from him the power of doing with the land what he thought was right, although she knew that he was willing to surrender the title to gratify her. We are asked, now, to do what the mother of James, by his voluntary offer, had the opportunity to do for seven years before her death, but never would do! We are asked to do this, by those who claim it only as a bounty from that mother, and in her name! We are asked to do it, by those who, being of full age, and having knowledge of the material facts, in the life time of James and his mother, never made the request until nine years after the death of that mother, and more than three years after the death of that son. The laws of our country require us to pronounce the evidence insufficient to sustain such a claim. In such cases, courts of equity consider the acts of the parties as evidence of the intent, and require the complainants to sustain their claim by evidence Hatton v. Landman et al. which is full, clear, and satisfactory.-1 White & Tudor's Lead. Ca. in Equity, 201; Gaither v. Gaither, 3 Md. Ch. Decisions, 158; Farringer v. Ramsey, 4 ib. 33; Bryan v. Cowart, 21 Ala. R. 92. See, also, Gascoigne v. Thiving, 1 Vernon, 366; Baldwin v. Campfield, 4 Halsted's Ch. Rep. 891. All the evidence may be reconciled, upon the following hypothesis: That Francis Hatton was not exempt from the infirmities incident to persons far advanced in years; that she obtained from her son James that protection and care of her person and property which is so necessary and grateful to an aged widow; that she entertained for him a partiality which was natural and deserved; that she was not willing that her daughters should know of this partiality; that, from the time of this conveyance to James until her death, she really intended that he should have the land for himself, and should do with it what he thought was right; that by her assent he really bought the land for himself; and that, with an affection worthy of all commendation, he held his time, his talents, and his property, subject to any disposition which would secure to her the greatest amount of tranquillity and gratification. Upon this hypothesis, his declarations and her declarations can be reconciled with the non-existence of the alleged resulting trust, or with its waiver and discharge by her before her death, if it ever did exist. It is due to all the witnesses to say, that we concede to them purity of intention, but not infallibility, especially in the narration of declarations made many years ago, and in which they had no possible interest. A decree must be entered here, reversing the decree of the chancellor, and dismissing the bill; and the complainants must pay the costs of this court, and of the court below. May's Heirs v. May's Adm'r. MAY'S HEIRS vs. MAY'S ADM'R. [PROCEEDINGS HAD ON ADMINISTRATOR'S PETITION FOR DIVISION OF SLAVES.] 1. Appeal lies from final decree of distribution, on proceedings instituted by personal representative.-An appeal lies from a final decree of the probate court, confirming the report of commissioners appointed to make a division of the slaves belonging to an estate among the persons entitled under the will, although the proceedings were instituted by the personal representative, and not by a legatee or distributee.-Code, § 1888, ¶ 4. 2. Deposition of sole witness.-When the claim or defence, or a material part thereof, depends exclusively on the evidence of a single witness, his deposition may be taken (Code, § 2318, ¶ 5), and may be read on the trial, although he resides within one hundred miles of the court. 3. Objection to entire deposition, when made.—An objection to an entire deposition, on account of defects in the commissioner's certificate, must be made (Code, § 2328) before the trial commences, and comes too late afterwards, though made as soon as the deposition is opened by the court. 4. Jurisdiction of probate court over ademption of legacies.-Although there may be cases, involving equitable circumstances, which the probate court, from its peculiar organization and mode of procedure, would be incompetent fully to adjust; yet it has jurisdiction over the ademption of legacies, as incident to the settlement and distribution of estates. 5. Admissibility of parol evidence to show whether advancement was intended as satisfaction of provision by will.-It is now well settled that parol evidence is admissible to show that a subsequent advancement by the testator was not intended as a satisfaction, in whole or in part, of a previous provision by will; and whenever such evidence is admitted for this purpose, it may be rebutted by similar evidence. 6. Ademption of legacies by subsequent advancement.-Testator, after providing for the payment of his debts, directed that "the entire residue" of his property, consisting of lands, slaves, and other property, should be equally divided among his wife and children, and declared that it was his "settled purpose" to make them all equally interested in his estate. The share of his only married daughter he directed should be divided between her and her husband, one half being secured to her as her separate estate, and the other half vesting absolutely in her husband. Afterwards he made advancements, consisting of lands, slaves, and other property, approximating in value the share which each would take under the will, to this daughter, another daughter then married, and his eldest son, who were the children of his first wife; and there was parol evidence (by two witnesses) of his subsequent declarations that this was independent of the provision made for them by will, that most of his property had come by their mother, and that he felt it his duty to give them more than his other children. Held, that the advancements were a satisfaction, pro tanto, of the provisions by will. |