Ex'ors of Nolan vs. Bolton, et al.

"ADVANCES, contracts, are said to take place, when a factor or agent pays to his principal, a sum of money, on the credit of goods belonging to the principal, which are placed, or are to be placed, in the possession of the factor or agent, in order to reimburse himself out of the proceeds of the sale." Bouv. Law Dic. This gives the strict legal sense of "advances;" and according to this, advances are loans, and nothing more.

"ADVANCEMENT, is that which is given by a father to his child, or presumptive heir, by anticipation of what he might inherit." Id. This is the strict legal sense of advancement; and it shows that advancements, and advances, when both words are taken in their strict legal sense, mean quite different things, the former, gifts; the latter, loans.

In ordinary usuage, what is the sense of "advances?"

It is in every body's mouth to say, that a man obtained an advance on his cotton, or on his watch, or on his own note, and the meaning is, that the man was accommodated with a loan on the security of the cotton, the watch, or the note. "ADVANCE," "6. A giving before hand; a furnishing of something, on contract, before an equivalent is received. 7. A furnishing of money or goods for others, in expectation of reimbursement; or the property so furnished." Webster's

Dic.

In ordinary usage, therefore, the word, advances, includes loans, and, perhaps, gifts. The counsel for the defendants, however, admit that it includes gifts; they say, it includes nothing else.

Whether, then, we take the word according to its meaning in law, or, according to its meaning in common usage, we must say, that the word includes loans as well as gifts.

More; we must say the same, if we take the word in the sense in which, according to the testimony, the testator actually used it.

According to the testimony, he meant the Bolton children to account for the money represented by the "bundle of old papers." Now, admit that the money represented by those

Ex'ors of Nolan vs. Bolton et al.

old papers, was loaned money, as the counsel for those children say, then, it must follow, the testimony being the criterion that he meant the children to account for loaned money.

And, in the second place, suppose it true, that the word, advances, as used in the will, does mean advancements, and does not mean loans, yet is it true, that it thence follows necessarily, that so much of the meaning of the previous words, as requires loans to be accounted for, is cancelled?

I think not.

The word, advances, is found in connection with the words, "the property to be divided," the whole expression being, "so as to make them share equally in the property to be divided, and in advances."

Is not the money the testator had due him on loan, to be included in the words, "the property to be divided?" They are certainly capable of including such money.

I think so.

And then, is it the dictate of reason, that the testator should wish his children to account for what was theirs, advancements, rather than for what was his, loans.

The testator may well have meant by the two terms taken together, "the property to be divided," and "advances," to cover all the ground which he had previously covered by the words, "all money or property they have received from me."

[1.] Upon the whole, then, we think, that the subsequent words do not as clearly import, that loans were not to be accounted for, as the prior words import that both loans and gifts were to be accounted for; and, consequently, we think that the subsequent words did not neutralize the prior words. The prior words not being neutralized, it follows, that they must have their full effect. And to have their full effect, the Bolton children must account for loans, as well as for advancements. We think, they will have to account for both. This being our conclusion, it must follow, that we think the following charge erroneous.

"Further, the Court charges you, that the time the will was written, if the notes remained debts up to that time, they

Ex'ors of Nolan vs. Bolton, et al.

were not changed by the testator in the will from a debt to an advancement."

What the Court meant by this charge, was, that if what the notes represented in the beginning were debts, and if those debts remained debts up to the making of the will, (that is, if they were not changed by the joint act of the testator and Bolton, into advancements,) the children of Bolton, were not bound to account for them.

If the testator meant those children to account for them, whether they were debts or advancements, as we have come to the conclusion that he did, then the children were bound to account for them, whether they remained in the form of debts, or were changed into the form of advancements. That the testator had the right to give his bequests on what terms he pleased, nobody will dispute. He might, therefore, give them, on the terms, that the legatees should account for money lent to them, or to their father.

What has been said, sufficiently disposes of the other charges, and the refusals to charge.

A single question remains, though it is not a question which the case, in the view that has been taken of it, requires to be decided.

Was the parol evidence admissible? Even if it was not admissible, there ought to be a new trial, as there was an error in the charge. But we are strongly inclined to think, that it was admissible.

In the view we take of the will, it is not true, that this evidence contradicted the will. The words of the will were broad enough to cover both loans and advancements, and to require an account of both. The parol evidence showed, that what the notes represented, was to be accounted for, whether what they represented, were loans or advancements. Here was no conflict between the parol evidence, and the words of the will.

Nor is it true, as we strongly incline to think, that the evidences being of the sayings of the testator, made it inad

Freeman vs. Norwell.

missible. The sayings were uttered at the time of the making of the will, and in connection with the act of making the will. They, therefore, were a part of that act, a part of the res gestæ. So I think. Then, they were sayings against interest, if the counsel for the defendants are right in contending that they go to show, that the notes represented advancements.

Advancements are gifts; and it is less to a man's interest, to admit a thing to be a gift, than it is to admit it to be a loan even though as a loan, it may be barred by the statute of limitations.

There can be no motive, in a matter of this sort, for a testator to say what is not true. If he wants to withhold his property from any one, he can do it, with or without a rea

son.

Judgment reversed.

HENRY FREEMAN, plaintiff in error, vs. THOMAS B. NORWELL, defendant in error.

If, in trover and bail under the Act of 1821, the defendant proves unable to give the bond, and the plaintiff gives it, and receives possession ofthe negroes, and then dismisses his action, and fails to restore the negroes to the defendant, such dismissal and failure amount to a breach of his bond.-BENNING J.

Trover, from Lincoln county. Decided by Judge THOMAS, April Term, 1858.

An action was brought in the Court below by Thomas B. Norwell, against Henry Freeman, to recover the penalty under a bond, on account of the breach of the condition of the said bond.

The condition of the bond was as follows:

"The condition of the above obligation is such, that where

Freeman vs. Norwell.

as, the said Yancey G. Freeman, committee as aforesaid, did commence his action of trover against the said Thomas B. Norwell, returnable to the March Term of the Superior Court of said county, 1857, for three certain slaves, to-wit: Jane, a woman about thirty-eight years of age, of dark complexion, and Crese, a woman about twenty-eight years old, and her boy child (name not known,) about five years old, of the value of $1,600; and the said Thomas B. Norwell having failed and refused to give bond and security for the forthcoming of said negroes, according to law. Now, should the said Yancy G. Freeman, well and truly produce said negroes to answer such judgment, execution or decree, as may be issued or rendered in the case, and well and truly pay the eventual condemnation money recovered in said case, ther this obligation to be void, else to remain in full force and virtue."

The plaintiff in his declaration, after setting out the above condition, stated that the condition of the bond had been violated; the said Yancy G. Freeman, for whom, and with whom the said Henry Freeman became jointly and severally bound, having dismissed his action of trover, and had judgment of dismissal entered on the minutes of the said Court, and a judgment for the costs of said suit rendered against him, on the 24th day of March, 1858; and that on the 2d day of April, 1858, he (the plaintiff,) demanded the said negroes, and the said Henry Freeman refused to deliver the same, having previously removed them to the State of South Carolina, the residence of the principal, in order to prevent the plaintiff from recovering the same, according to his undertaking.

To this declaration, the defendant demurred, on the ground that the same was not sufficient in law to enable the plaintiff to maintain his action.

After argument, the Court overruled the demurrer, and the defendant excepted, and filed his bill of exceptions, assigning the same as error.