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Worrill, ex'or., vg. Wright, adm'r.

herein by me given to my said natural daughter Mary Martha, are for her sole and separate use, benefit and enjoy. ment."

“ And to my friend Edmund H. Worrill I commit the management of her property, the care of her education and the guardianship of her person; and should he die before executing this trust, then to my friend Alexander R. Leonard I commit the guardianship of the person and property of my said natural daughter, with the request that he will take good care of her property, treat her kindly, watch over her welfare, and see that she is properly educated.”

“And should any of the negroes I have herein given to my said natural daughter die, or become valueless from any cause or casualty, my executor hereinafter named is hereby authorized and fully empowered, in the place of such to put other negroes of like value, as near as the same can be ascertained."

Defendant demurred to the bill for want of equity, and moved to be dismissed from other or further answer to the same; which the Court overruled. Whereupon defendant excepted, and assigns the same as error.

WM. DOUGHERTY; Smith & Pou, for plaintiff in error.

A. F. OWEN; STUBBS & Hill, for defendant in error.

By the Court.-McDonald, J. delivering the opinion.

The principal question presented in this record is, whether the provision in the will, that on the death of the natural daughter of the testator without issue, the negroes given to her in the will, are to return to the estate of the testator, to be divided among his heirs at law, is a legal provision.

It is unnecessary to go into the enquiry whether the terms of the will declaring a reversion of the negroes to testator's estate in the contingencies mentioned, would create an estate fail, if used in a will of lands in England, for the purpose ofi

Worrill, ex'or., vs. Wright, adm'r

ascertaining whether the limitation over to the heirs at law of testator is void, under the statute of this State. The Act of 17th February, 1854, settles that. The gift over is good under that Act, the legal import of the terms used being now a definite failure of issue.

It is argued that the Act referred to was passed after the will was made, which bequeathed the property to the intestate of plaintiff in the Court below, and that that Act does not change the rule of construction in regard to wills already made. A will cannot take effect until the death of the testator. It is, in fact, no will before. It passes and vests no right prior to the death. Such is not the case with other instruments made and executed for a consideration; they always pass an interest of some sort, and those instruments, whatever they may be, are irrevocable, except with the consent of the parties to them. A will may be made and signed with all the formalities required by the law, and it may be then delivered over to one of the persons named as a legatee therein, and yet it passes no right, and is not binding upon the person who makes it, he being still in life. He may change or annul it at his pleasure. The Legislature no doubt, intended to change a legal rule of construction immediately, when the change could not interfere with vested rights. The old rule it considered as, in many cases, disappointing the intention of testators and others, limiting over estates, when no corresponding public advantage was gained by its enforcement. Whether they took a correct view of the subject cannot be determined but by the practical operation of the new rule. But in construing the Act we must have respect to the object of the Legislature. Mr. Dwarris quotes a valuable rule from a distinguished author on this subject, who says that “that must be the truest exposition of a law, which best harmonizes with its design, its objects and its general structure.

To give this Act the interpretation, that the rule, which it prescribes, should apply to wills and other instruments,

Worrill, ex'or., v8: Wright, adm'r.

which could have no effect whatever in passing a right from one person and vesting it in another, (although signed and delivered before the Act) prior to the passing of the Act, would seem to harmonize best with its design and object. Indeed, transpose half a dozen words, and we would have, perhaps, a correct reading of the statute, and one that would harmonize with the Legislative intention. Let it be read thus : “ That after the passage of this Act, all wills, testaments and other instruments made and executed, by which property, either real or personal, is limited over, so as to vest in some other person, &c."

The words "made and executed” would not refer to the time of the passing of the Act, but to the substance of the will or instrument; that if it should be so made and executed as to limit over property, real or personal, so as to vest in some other person, &c.; and the words “after the passage of the Act," would refer to the time at which the new rule of construction would go into effect, viz. immediately.

But allowing the words to remain as the Legislature has placed them, and we think it cannot apply to wills made by testators who died after the passing of the Act.

This cause was argued before this Court exclusively on the claim set up by the complainants to the negroes and their hire, without reference to the legacy of three thousand dollars, and upon that view, excluding the pecuniary legacy from our consideration, we reverse the judgment of the Court below.

Judgment reversed

Chance vs. Summerford.

JAMES CHANCE, defendant in error, vs. HENRY SUMMERFORD,

defendant in error.

[1.) Record of a cause between other parties admitted to prove that there was a judg.


[2.] Evidence admissible to prove that such judgment was paid, and by whom it

was paid. [3.] Note sued on no part of the record of the judgment obtained thereon; and if &

copy be admitted in evidence without objection, it may be considered by the jury.

Assumpsit, from Baker county. Tried before Judge arLEN, May Term, 1858.

Chance made his note, which B. N. Scott and Henry Summerford endorsed to the Central Bank of Georgia. After the maturity of the note, the same was sued to judgment in Houston county, and execution issued thereon. Henry Summerford paid off the fi

. fa. It appears, from the record, that Chance having removed from the county o Houston, was not served with the writ.

Summerford sued Chance on the debt after he obtained control of the fi. fa., and tendered in evidence on the trial the transcript of the record of the suit and execution against him from the county of Houston, and therein the evidence of payment of the fi. fa. by him; and defendant's counsel objected to its admission. Which objection the Court overruled, and defendant excepted.

Plaintiff proposed to read the answers of Warren and Summerford to interrogatories, proving the transfer, after the payment of the execution, to Summerford, the plaintiff

. Defendant's counsel objected to their answers being read, which objection the Court overruled, and defendant again excepted. The answers were read.

Plaintiff here closed his case, and the defendant moved the Court for a non-suit on the grounds taken in the rule nisi for a new trial; which motion was refused.

The jury found in favor of the plaintiff.

Chance vs. Summerford.

And defendant moved the Court for a new trial on all the points taken by defendant, as above stated and overruled, and also on the grounds that the verdict of the jury was contrary to law, and that the verdict of the jury was contrary to the evidence; which the Court overruled.

Whereupon defendant excepted, and assigns the same as


P. J. STROZIER, for plaintiff in error.

R. F. Lyon, for defendant in error.

By the Court.—McDonald, J. delivering the opinion.

[1.] The exemplification of the case in favor of the Central Bank against the endorsers of the plaintiff in error was admissible for the purpose of proving the recovery of the debt against them by the bank, and the evidence of Warren and Summerford was admissible to prove the payment of the money by the defendant in error. 1 Greenleaf's Ev., secs. 538, 539.

[2.] The counsel for plaintiff in error moved for a nonsuit on the grounds taken above, and overruled by the Court, and to the refusal of the Court to award it he excepted. Having sustained the decision of the Court below in admitting the above stated evidence, it follows that it must be sustained in refusing a non-suit; and of course, so far as the motion for a new trial is based on allegations of error in the Court for overruling exceptions to the testimony and refusing the motion to non-suit the plaintiff, the judgment of the Court below must be affirmed.

[3.] The grounds that the verdict was contrary to law, and that it was contrary to the evidence, must be overruled also. There are two copies of the note sued on by the Central Bank, sent up in the record. One of these copies has the names of the endorsers, and the other has not. They are properly, no part of the record in the Central Bank case, and

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