161 Ga. 179 | Ga. | 1925
Certain heirs at law brought suit against two of their coheirs. The petition as amended alleged that the ancestor
1. A witness for the plaintiffs testified: “They [defendants] said they was going to divide it [the land] up equally amongst his [the ancestor’s] children.” This evidence was ruled out, the court stating that it did not “illustrate anything.” The ruling was assigned as error, because “it was the scheme of the” ancestor, “suggested to him by” the defendants, “to convey the property to” them, “and that they would sell the same and divide it equally among the heirs at law; that he, relying on their promise to do this, conveyed the property to them, believing at the time he executed the same that it was a trust deed and that his purpose 'would be carried out. And in this connection it was shown that while he made a will and gave this witness . . $25.0(5, that the executors [defendants] paid her $500.00, the same that was paid the other heirs, showing that they intended to carry out the old man’s scheme. . . It proved that the deed was really a trust deed, or that it was secured by fraud, and showed that they really accepted the deeds as trustees, and . . that said testimony . . was material in view of the pleadings in said case.” Error was also assigned on the statement that “it would not illustrate anything,” on the ground that the statement was the expression of an opinion prejudicial to the plaintiffs. Upon these exceptions it is held: (a) A parol trust can not be engrafted on an absolute deed, (b) There was no evidence that the defendants suggested to the ancestor a scheme that he should convey the land to them and that they would sell it and divide it equally among the heirs at law. (c) The rejection of the evidence was not erroneous for any of the reasons assigned, (d) The statement by the court was not harmful to the plaintiffs.
2. A witness for plaintiffs on direct examination was asked: “What occurred between him [the ancestor] and Frank [one of the defendants], and what did Frank agree to do?” The witness
3. A ground of the motion for new trial alleged that a witness for plaintiffs was asked, “After he said that the 150-acre place was worth $100.00 per acre, ‘selling it for $3,000.00,’ would you say that was a fair intelligent trade ?” and that the witness answered, “I do not think so,” and that the court ruled out the answer, on objection. The question was for the jury, and not a proper subject for opinion evidence. There was no error in excluding the evidence.
4. A ground of the motion for new trial alleged that the question was asked: “ ‘Did the old man believe that?’ (meaning did the old man believe what Frank told him, i. e. that the papers were fixed in the way that Holderness had advised that they be fixed). Whereupon counsel for defendants objected on the ground that it would be [a] conclusion on the part of the witness. Whereupon counsel for movants stated: ‘I asked him if the old man believed the statement of Frank.’ The court then remarked: ‘How does he know? I sustain the objection.’” This ruling was not error, as contended, because: (a) the court expressed an opinion prejudicial to the plaintiffs; (b) “if is probable that the witness did know whether or not E. McWhorter believed what Frank told him, and he knew or could have known whether E. McWhorter relied on the statement of Frank as to whether or not the papers had been prepared by the attorney chosen to prepare them.”
5. The court did not err in admitting testimony for the purpose of showing mental capacity of the ancestor, as follows: “ Question: ‘He told you, just prior to the time this will was made, that he was going to pay his children according to the way they paid him ? ’ Fleming answered: ‘That was when he come and got the will. That was when he went off for an operation. Soon after he come back he came by there and got the will. That is when he told me about what his attorney said. He did not mention any of his children.’ ”
6. The seventeenth ground of the motion for a new trial is as
7. A witness for the defendant was asked, on cross-examination, the question: “Did he see you with it?” (referring to the will). A ground of the motion for new trial excepts, for several reasons, to the refusal of the court to allow the question to be answered. There is no merit in this ground.
8. A witness for the defendant testified that he had a conversation with the ancestor “some time before he died, not so powerful long after he married the last time. . . He told me he expected not to give his girls anything, because they had not treated him right. He was talking about his family.” It was shown, on cross-examination, that the conversation took place in the ancestor’s front yard while he lived in Alabama, and by other evidence that he married the second time and left Alabama in 1899 many years before his death. There was also evidence tending to show that the girls did not receive the second marriage cordially, and that their attentions to their father thereafter were' never such as to show complete reconciliation. The judge did not err in admitting
9. The judge did not err in charging the jury as follows: “Now the petitioners in this ease insist, first: that the deeds should be set aside by this jury, because the grantee [grantor], E. Mc-Whorter, did not have sufficient mental capacity to make the deeds at the time of their execution. Well, gentlemen, the law on this question does not require a high degree of mental power to make a binding contract. One who has enough of mind and reason to a clear and full understanding of the nature of the consequences of his act in making a deed is to be considered sane. One who lacks this capacity is to be considered insane. The law says one who has not the strength of mind and reason equal to a clear and full understanding of his act in making a contract is one who is afflicted with an entire loss of understanding.” DeNieff v. Howell, 138 Ga, 248 (5) (75 S. E. 202); Dunn v. Evans, 139 Ga. 741 (78 S. E. 122); Barlow v. Strange, 120 Ga. 1015 (48 S. E. 344); Frizzell v. Reed, 77 Ga. 724 (2); Nance v. Stockburger, 111 Ga. 821 (36 S. E. 100); Whitehead V. Malcom, ante, 55 (129 S. E. 769). The request to review and overrule the decision in DeNieff v. Howell, Barlow v. Strange, supra, and other cases adhering to the doctrine of those decisions, is refused.
The third and seventh grounds of the amended motion for a new trial allege that the judge stated certain principles of law as applicable to the case, and then submitted certain questions to be answered by the verdict of the jury; and that the charge as given, taken in connection with the questions propounded, took from the jury the right to properly apply the principles of law given in charge; and further that the judge should have submitted to the jury a question under which they would have had the right to apply stated principles of law; and that the charge as given was erroneous for each of the reasons assigned. The order of the judge approving the grounds of the amendment to the motion for a new trial stated: “The recitals of fact in the foregoing amendment approved as correct, except grounds III and XII, which should be numbered XIII. These are approved as shown in explanatory note hereto attached as exhibitf A,’ ordered filed as a part of the record.” The explanatory note was in part: “The 2nd and last question set out in ground III of the amended motion, purporting to be an
11. In the fourth, ninth, tenth, and twelfth grounds of the amendment to the motion for a new trial, complaint is made of the failure to submit certain questions to the jury. In the light of the statement in the notes by the presiding judge quoted in the foregoing division, as to the agreement of the attorneys “to submit the ease on these questions,” there was no merit in these grounds.
12. The judge charged: “Gentlemen, the law is this (I will call your attention to undue influence). A person standing in confidential relation to another is not prohibited from exercising any influence whatever to obtain a benefit to himself. The influence must be what the law regards as undue influence. Such influence as is obtained by flattery, importunity, superiority of will, mind, or character, which would give dominion over the will to such an extent as to destroy free agency, or constrain one to do against his will what he is unable to refuse. Such is the kind of influence which the law condemns as undue.” Error was assigned on the portion of the charge contained in the first two sentences above quoted. When the portion of the charge excepted to is considered in connection with its context, there was no error in the' charge. DeNieff v. Howell, supra.
14. The eleventh ground was merely elaborative of the general grounds.
15. The evidence authorized the verdict, and there was no error in refusing the motion for new trial.
Judgment affirmed.