[202]*202
By the Court.
Stephens, J.,
delivering the opinion.
Littleberry- Lucas died, leaving two wills — one executed in 1845, and the other in 1855. Cincinnatus Lucas, the defendant in error, being the nominated executor of the older will, propounded it for .probate, and the plaintiffs in error propounded the other, each party entering a caveat against the probate proposed by the other party. When the two cases thus made stood for trial on the appeal, the parties, through certain of their counsel, Mr. Hill for the defendant in error, and Messrs. Trippe & Poe for the plaintiffs, entered into a negotiation for- the settlement of the whole litigation. The negotiation resulted in the taking of an agreed verdict, accompanied by an explanatory paper, the verdict written by Mr. Hill, and the explanatory paper by Mr. Trippe. Within a few minutes after the verdict had been taken, the plaintiffs moved to set aside on the ground that, by their mistake of its legal effect, the verdict, with the explanatory paper, had been so framed as not to carry out the true settlement to which they had agreed. The defendant met this motion with four objections : First, that the ground on which it is founded is not good in law, if true in fact. Second, that it is not true in fact. Third, that the proper remedy is not a motion to set aside the verdict, but a bill to reform the agreement on which the verdict is founded. Fourth, that the minor children of Cincinnatus Lucas have an interest in the verdict, and are not legally represented before the Court. The presiding Judge sustained the third objection, and overruled the motion. We think all of the objections are bad, and that the motion ought to have been granted.
1. The principle of granting relief from a mistake as to the legal effect of an instrument, is established by repeated adjudications of this Court, and also by statute. An Act of 1858, (see Acts of that year p. 74,) in attempting to do several things, does accomplish this: it converts into statutes, from the time of its passage, all such decisions of this Court as had been made before its passage, with the concurrence of a full bench. Now, the case of Wyche and wife vs. Greene, in 11 Ga. Rep., 159, and again in 16 Ga. Rep., 49, had been decided by a unanimous full bench long before the passage of that Act; and the very point decided in it, is the principle in question. In that case, a man made a deed of [203]*203gift to his married daughter and “her issue,” intending to give her an estate for life with remainder to her children, and supposing that the words he had used would have that legal effect. The legal effect of the instrument was, of course, to vest the whole estate immediately in the husband of the woman; but the Court held that it ought to be so reformed as to carry out the true intention of giving to her for life, with remainder to her children. The principle is, that where there is a difference between the legal effect produced by the words, and the effect intended to be produced by them, the words, with their mistaken effect, shall yield, and the true intention shall prevail.
2. Lid the parties mistake the legal effect of the verdict in this ease? The verdict sets up as a will, a part of the 14th item of the will of 1845, giving certain land and negroes to the children of Cincinnatus Lucas, and then declares an intestacy as to the rest of the estate. This gives the land and negroes as the will gives them; that is, from the time of the testator’s death, with the natural increase of the negroes from that time, and with eight thousand dollars of rent and hire which had accrued between that time and the time of the settlement. The explanatory paper excepts the natural increase^ of the negroes from this effect of the verdict, but is silent as to the rent and hire. The verdict, therefore, gives the Lucas children the land and negroes named in that part of the will which is set up, together with the rent and hire. Now, we think it is perfectly clear that the settlement which was intended to be carried out by this verdict, gives these children only the land and negroes as they stood at the time of the settlement, without any precedent rent or hire. The history of the negotiation, as given by all three of the negotiators, proves this beyond all doubt. Mr. Trippe opened the negotiation by offering Mr. Hill a round sum of twenty thousand dollars for the Lucas children. Mr. Hill rejected the offer, and made a proposition of his own, which was very much discussed and finally accepted by the other side. The question, What was that proposition ? covers the whole dispute. It is important to remark, that it covered the whole estate of which this rent and hire were a known part — giving a certain specified part to the Lucas children, and all the rest of it, without specification, to the heirs at law. Under this proposition, there cannot be an absence [204]*204of intention as to any part of the estate. Under it, the rent and hire were intended to go either to the Lucas children or to the heirs at law, and to the heirs at law for lack of specification, unless intended to be included in the specification of what goes to the children. It is a division of a whole consisting of many parts, by carrying certain parts over a line for one set of persons, and leaving the remainder for another set of persons. The intention is to divide the whole, and whatever is not intended to be carried over the line, is intended to be left. The only question, then, is, What was intended to be included in that part of Mr. Hill’s proposition which was for the benefit of the Lucas children ? He says the terms of his proposition were, that he would take the-land and negroes under the 14th item of the will of 1845. Now, the legal effect of these terms, in which he says he communicated his proposition, is undoubtedly to carry the land and negroes as the will gives them; that is, from the time of the testator’s death; but it is demonstrable from the discussion and treatment of this proposition by the negotiators, Mr. Hill included, that he himself did not mean so. They all discussed it, went into a valuation of it, and agreed to it, as a proposition embracing only the land and negroes mentioned in the 14th item, as they stood at the time of the negotiation. They valued the land and negroes at twenty-two thousand dollars, as they stood at the time, and they were valuing them as embraced in the proposition. They therefore treated and considered the proposition as embracing the land and negroes only as they stood at the time of the negotiation. This of itself is a conclusive view as to what both sides intended by the proposition. But again: When the valuation had been made, Mr. Hill urged the other side to accept his proposition, because it exceeded theirs by only tuoo thousand dollars; that is to say, it embraced nothing but the land and negroes valued at twenty-two thousand dollars. The proposition, considered as embracing the corpus only of the land and negroes, did exceed the other by precisely two thousand dollars, and he, by telling them that it exceeded the other by no more than two thousand dollars, assured them that it embraced no more than the corpus of the land and negroes. If it had embraced the rent and hire, it would have exceeded the other proposition by, not two, but ten thousand dollars. The negotiators talked about it, estimated it, con[205]*205sidered it, treated it, and agreed
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[202]*202
By the Court.
Stephens, J.,
delivering the opinion.
Littleberry- Lucas died, leaving two wills — one executed in 1845, and the other in 1855. Cincinnatus Lucas, the defendant in error, being the nominated executor of the older will, propounded it for .probate, and the plaintiffs in error propounded the other, each party entering a caveat against the probate proposed by the other party. When the two cases thus made stood for trial on the appeal, the parties, through certain of their counsel, Mr. Hill for the defendant in error, and Messrs. Trippe & Poe for the plaintiffs, entered into a negotiation for- the settlement of the whole litigation. The negotiation resulted in the taking of an agreed verdict, accompanied by an explanatory paper, the verdict written by Mr. Hill, and the explanatory paper by Mr. Trippe. Within a few minutes after the verdict had been taken, the plaintiffs moved to set aside on the ground that, by their mistake of its legal effect, the verdict, with the explanatory paper, had been so framed as not to carry out the true settlement to which they had agreed. The defendant met this motion with four objections : First, that the ground on which it is founded is not good in law, if true in fact. Second, that it is not true in fact. Third, that the proper remedy is not a motion to set aside the verdict, but a bill to reform the agreement on which the verdict is founded. Fourth, that the minor children of Cincinnatus Lucas have an interest in the verdict, and are not legally represented before the Court. The presiding Judge sustained the third objection, and overruled the motion. We think all of the objections are bad, and that the motion ought to have been granted.
1. The principle of granting relief from a mistake as to the legal effect of an instrument, is established by repeated adjudications of this Court, and also by statute. An Act of 1858, (see Acts of that year p. 74,) in attempting to do several things, does accomplish this: it converts into statutes, from the time of its passage, all such decisions of this Court as had been made before its passage, with the concurrence of a full bench. Now, the case of Wyche and wife vs. Greene, in 11 Ga. Rep., 159, and again in 16 Ga. Rep., 49, had been decided by a unanimous full bench long before the passage of that Act; and the very point decided in it, is the principle in question. In that case, a man made a deed of [203]*203gift to his married daughter and “her issue,” intending to give her an estate for life with remainder to her children, and supposing that the words he had used would have that legal effect. The legal effect of the instrument was, of course, to vest the whole estate immediately in the husband of the woman; but the Court held that it ought to be so reformed as to carry out the true intention of giving to her for life, with remainder to her children. The principle is, that where there is a difference between the legal effect produced by the words, and the effect intended to be produced by them, the words, with their mistaken effect, shall yield, and the true intention shall prevail.
2. Lid the parties mistake the legal effect of the verdict in this ease? The verdict sets up as a will, a part of the 14th item of the will of 1845, giving certain land and negroes to the children of Cincinnatus Lucas, and then declares an intestacy as to the rest of the estate. This gives the land and negroes as the will gives them; that is, from the time of the testator’s death, with the natural increase of the negroes from that time, and with eight thousand dollars of rent and hire which had accrued between that time and the time of the settlement. The explanatory paper excepts the natural increase^ of the negroes from this effect of the verdict, but is silent as to the rent and hire. The verdict, therefore, gives the Lucas children the land and negroes named in that part of the will which is set up, together with the rent and hire. Now, we think it is perfectly clear that the settlement which was intended to be carried out by this verdict, gives these children only the land and negroes as they stood at the time of the settlement, without any precedent rent or hire. The history of the negotiation, as given by all three of the negotiators, proves this beyond all doubt. Mr. Trippe opened the negotiation by offering Mr. Hill a round sum of twenty thousand dollars for the Lucas children. Mr. Hill rejected the offer, and made a proposition of his own, which was very much discussed and finally accepted by the other side. The question, What was that proposition ? covers the whole dispute. It is important to remark, that it covered the whole estate of which this rent and hire were a known part — giving a certain specified part to the Lucas children, and all the rest of it, without specification, to the heirs at law. Under this proposition, there cannot be an absence [204]*204of intention as to any part of the estate. Under it, the rent and hire were intended to go either to the Lucas children or to the heirs at law, and to the heirs at law for lack of specification, unless intended to be included in the specification of what goes to the children. It is a division of a whole consisting of many parts, by carrying certain parts over a line for one set of persons, and leaving the remainder for another set of persons. The intention is to divide the whole, and whatever is not intended to be carried over the line, is intended to be left. The only question, then, is, What was intended to be included in that part of Mr. Hill’s proposition which was for the benefit of the Lucas children ? He says the terms of his proposition were, that he would take the-land and negroes under the 14th item of the will of 1845. Now, the legal effect of these terms, in which he says he communicated his proposition, is undoubtedly to carry the land and negroes as the will gives them; that is, from the time of the testator’s death; but it is demonstrable from the discussion and treatment of this proposition by the negotiators, Mr. Hill included, that he himself did not mean so. They all discussed it, went into a valuation of it, and agreed to it, as a proposition embracing only the land and negroes mentioned in the 14th item, as they stood at the time of the negotiation. They valued the land and negroes at twenty-two thousand dollars, as they stood at the time, and they were valuing them as embraced in the proposition. They therefore treated and considered the proposition as embracing the land and negroes only as they stood at the time of the negotiation. This of itself is a conclusive view as to what both sides intended by the proposition. But again: When the valuation had been made, Mr. Hill urged the other side to accept his proposition, because it exceeded theirs by only tuoo thousand dollars; that is to say, it embraced nothing but the land and negroes valued at twenty-two thousand dollars. The proposition, considered as embracing the corpus only of the land and negroes, did exceed the other by precisely two thousand dollars, and he, by telling them that it exceeded the other by no more than two thousand dollars, assured them that it embraced no more than the corpus of the land and negroes. If it had embraced the rent and hire, it would have exceeded the other proposition by, not two, but ten thousand dollars. The negotiators talked about it, estimated it, con[205]*205sidered it, treated it, and agreed to it as embracing only the corpus of the land and negroes named in the 14th item of the will of 1845, and as not embracing either the preceding natural increase of the negroes or the preceding rent and hire. Mr. Hill says it never occurred to him to get rent and hire. Messrs. Trippe & Poe say that they conceded the corpus, and no more. There is no conflict, the evidence is all one way, and it shows irrefragibly that these negotiators arrived at an agreement to settle the whole estate by giving the Lucas children the corpus only of the lands and negroes. Did they afterwards depart from that agreement ? It is true, they made a subsequent agreement as to the mode of carrying out the main ODe, but the subsequent agreement was only ancillary to the first, intended, not to vary it, but to carry it out. In the subsequent negotiation respecting the proper mode, Messrs. Trippe & Poe gave the strongest proof that they intended to sanction no departure from the agreement already made, and that they held the mode subordinate to the end. This verdict, as it now stands, was proposed as the best mode of carrying out the agreed setlement. After it had been discussed somewhat, they discovered that, in that form, it would carry the preceding natural increase of the negroes. Mr. Hill insisted that he should have the verdict in that form, with its legal effect, whatever that might be, but Messrs. Trippe & Poe promptly and peremptorily repudiated the idea of allowing any legal effect which should concede more than they had already agreed to. They said they would not concede a dollar more, and Mr. Hill yielded. They adhered, however, to the verdict, but prevented its legal operation on the preceding natural increase of the negroes, by a clause in the explanatory paper. This natural increase was small in value, and this incident in the negotiation shows at once how resolute Messrs. Trippe & Poe were, not to concede any more than they had already agreed to concede, and that they considered the natural increase of the negroes to be an enlarged demand on Mr. Hills part. The departure which was about to be made from the agreement in respect to the natural increase of the negroes was seen and prevented. The departure which was made in respect to the rent and hire is discovered new, and ought to be corrected.
3. And this brings us to the remedy. There is no effort here to reform an agreement nor to enforce one. A bill in [206]*206equity would be necessary for that purpose. The Court, in this case was simply asked to recall the aid which itself had lent to the consummation of a mistake.' It was asked to set aside its own verdict, because it was not truly an agreed verdict, as the Court supposed it to be when it was signed. Suppose the mistake in this verdict had been discovered before it was signed, and Messrs. Trippe & Poe — as they undoubtedly would have done — had objected to its being signed, would the Court have ordered it to be signed as an agreed verdict, over the protest of one of the parties to it ? Surely not; and for the reason that it would not have been an agreed verdict, and would have had nothing to support it. And for the same reason, the Court ought to have recalled its own act in having it signed as an agreed verdict, when it was discovered to have had nothing to support it but a mistake. Suppose the verdict had contained words which one of the parties did not know were in it, it would not have been an agreed verdict, and would have been set aside immediately upon the discovery that it was not so. So when it contained an idea which one of the parties did not know was in its words, it was not an agreed verdict, and ought to have been set aside. This motion to set aside and reinstate was, in effect, a motion for a new trial, and gave the Court the same power over the verdict. When a new trial is moved within time, as this was, it is a form of proceeding under which the Court may inquire into any cause which shows that the verdict was obtained by fraud or mistake, or is without foundation to support it. The whole argument on the remedy in this case is embraced in the statement that this motion only asks the Court to set aside its own mistaken verdict, and does not ask the reformation or enforcement of any contract.
4. The children of Cincinnatus Lucas are not heirs at law of Littleberry Lucas, and have no interest in this verdict, except as legatees under the will of 1845. Of that will, Mr. Cincinnatus Lucas, the defendant in error here, is the nominated executor and propounder, and the motion to set aside this verdict is but a part of the litigation involved in conducting the caveat to a final adjudication. We cannot doubt that the nominated executor and propounder of á will is the legal party, in behalf of the will and those-who claim under it, to conduct the litigation of a caveat from the beginning to the end of the chapter. It was intimated that while [207]*207he might litigate for the legatees, he could not bind them by his compromise. It is enough to say that our judgment in this case does not bind them by his compromise, but turns them loose from it. We think the verdict ought to have been set aside, on condition that the defendant might prevent it by entering on the minutes of the Court a renunciation of the rent and hire, which are carried by the terms of it as it now stands. We send the case back for it to take that course. ■
Judgment reversed.