163 Ga. 267 | Ga. | 1926
C. C. Chance and W. E. Chance brought an equitable petition against J. W. Chance Jr., as administrator of the estate of J. W. Chance Sr., and prayed for an accounting, and that they have judgment for their distributive shares in the estate upon such accounting. The defendant filed a plea averring that both of the plaintiffs were indebted to the estate of J. W. Chance Sr. in certain amounts upon promissory notes which he held as administrator, and which were given to J. W. Chance Sr., in his lifetime. Both of the plaintiffs insisted, on the trial of the case, that the notes referred to in the defendant’s answer had been settled in' full with their father prior to his death. After evidence was introduced by both sides the jury returned a special verdict in answer to certain questions propounded by the court, to the effect that both of the notes had been paid in full to J. W. Chance Sr., prior to his death. In accordance with the verdict the court decreed that the plaintiffs have and recover of the defendant their distributive shares of the estate. The defendant made a motion for new trial upon the general grounds and two special grounds, which was overruled, and the defendant excepted. On the argument here it is not insisted by plaintiff in error that the verdict is not supported by the evidence. On the contrary it is stated in his brief that the verdict is supported by evidence, and from an examination of the evidence we find this to be true.
But it is insisted that the court erred in admitting the following evidence of Noel Chance, he being interested in the estate of the deceased: “I am a son of J. W. Chance Sr., and a brother of the plaintiffs here, and of the defendant. I was present at the time a contract was made between my father and W. E. Chance. That was in Cullman, Alabama, about October, 1910. As to what the contract was, I reply that my father owned a little piece of land out there. He come out there and wanted to sell it. Looking for a buyer for it and couldn’t get one. He asked $900 for it, and couldn’t get anybody to buy it. He made my brother a proposition like this: if he would go in the house and repair the house and barn, and could ever pay him $900, he should have it. That
In the second special ground of the motion for new trial error is assigned because the court admitted a certain bond for title in evidence, which purported to be as follows: “executed by J. W. Chance to C. C. Chance, in the penal sum of $650, dated November 16, 1905, and obligating J. W. Chance to convey 55 acres of land in the 6th district of Carroll County, Georgia, and being the S. E. corner of lot 294, the purchase-price being $650, and cash payment of $100, balance evidenced by two notes dated November 16, 1905, and due December 1, 1906, for $294.25; and the other due December 1, 1907, for $313.50, purported to be signed on November 16, 1905, by J. W. Chance, and attested by J. S. Dobbs and W. 33. Chandler, J. P.” Movant’s counsel objected on the ground that the execution of the bond for title had not been proved by either of the subscribing witnesses, and their absence was not accounted for, although Noel Chance, one of the sons of J. W. Chance, testified that this was his father’s signature. It was not error to admit in evidence the bond for title. It was only incidentally or collaterally involved. The Civil Code (1910), § 5833, par. 4, provides that the subscribing witnesses must be produced in all cases, except where the paper is only incidentally or collaterally material to the case.
Judgment affirmed.