Ham v. Preston

152 Ga. 244 | Ga. | 1921

Lead Opinion

Gilbert, J.

1. The motion to dismiss the bill of exceptions has been sufficiently dealt with in the ' headnotes, except that portion dealing with the sufficiency of the brief of the evidence. The only evidence submitted on the hearing of the case is contained in the bill of exceptions, and the recital of it is as follows; " Plaintiff introduced evidence proving that said defendant, Mrs. W. Walker Preston, is a resident of said county; that plaintiff and the said Mrs. Emma G. Ham, were intermarried on the twenty-third day September, 1915; and that the said Mrs. Ham died on the fourteenth day of December, 1918, leaving plaintiff her sole surviving heir at law; and that there were no debts against the estate of the said Mrs. Ham. That the said Mrs. Ham, at the time of her death, owned certain real estate, consisting of a dwelling-house and lot and a storehouse and lot in the town of Flo-villa, Georgia, and that said real estate is the same as that described in Exhibits A & B, respectively, attached to, plaintiff’s petition; that this was the only real estate owned by the said Mrs. Ham; that she continued to collect the rents on said dwelling-house and lot, and exercised other rights of ownership over said property. That prior to her death the said Mrs. Ham signed two instruments of writing, which were introduced in evidence with Exhibits A & B attached to plaintiff’s petition, and that said Exhibits A & B were exact copies of said instruments, except that on the instrument purporting to be a Avarranty deed to said dwelling-house and lot there was written on said instrument the following words: ‘ To be delivered at my death (to Bess Preston) 7/14/16. Mrs. Emma G. Ham;’ said words or notatiou being in the handwriting of the said Mrs. Ham. That sometime prior to her death, during the fall or about September before she died in December, the said Mrs. Ham deposited with J. T. Gibson, cashier of the Bank of Flovilla, said instruments of writing together with other papers, all of which were sealed in a large envelope or wrapper, telling the said Gibson, ‘Keep these papers for me; and if anything happens to me, turn them over to Bess’ (meaning thereby Mrs. W. W. Preston); that the said Gibson had been acquainted with the said Mrs. Ham for ‘twenty-odd years,’ and that before her marriage to plaintiff the said Mrs. Ham had operated a store next door to the bank of which the said Gibson was cashier, and that the said Mrs. Ham had often left other papers and valuables with the said Gibson for safekeeping, that she kept money on deposit in said bank, and that the said Gibson would make deposits for the said Mrs. Ham as her agent, and often collected the rents on said dwelling-house and lot and deposited the same to the credit of the said Mrs. Ham. That when the said sealed envelope was 'delivered to the said Gibson by Mrs. Ham there was written on the outside of the same the following words: ‘ Mrs. J. H. Ham’s papers,’ and that "no other writing or notation appeared thereon. The said Gibson never parted with the possession of said papers, nor was he ever authorized or directed to deliver them to any one during the lifetime of the said Mrs. Ham. On the afternoon following the morning on which Mrs. Ham died, Miss Lucy Goodman called Mr. Gibson on the telephone and said, ‘ Mrs. Ham told her (Miss Goodman) to tell him (Mr. Gibson) to deliver those papers to Mrs. Preston as soon as she died.’ Miss Goodman asked Mr. Gibson if she could come and get the papers for Mrs. Preston. Mr. Gibson replied that he didn’t know exactly where they were, but that he would get them up and deliver them. The said Gibson did not deliver the papers to the said Mrs. Preston, but two days later gave them to her husband, W. W. Preston, telling him Miss Lucy Goodman said that Mrs. Ham said to deliver them to Mrs. Preston as soon as- she died. When said Gibson delivered this package of papers to said W. W. Preston, he had never opened said envelope nor did he know what the same contained. Gibson testified, on cross-examination, that he supposed, or rather his understanding was, Mrs. Ham meant for him to deliver the papers to Mrs. Preston, if she died before she called for them to be returned to herself; and that she never called for them after giving them to him to keep for her. The said Mrs. Ham had sold to W. W. Preston (under bond for title) the storehouse and lot, and held his, W. W. Preston’s, notes for'the balance of the purchase-money due. About one month before-she died she told Raymond Biles, who was doing clerical work for the government in J. PI. Ham’s office, that she had bought a home on Mulberry street (Jackson), and she wished she could sell her'house at Flo-villa; she said she had sold her store to her brother-in-law, and wished he would pay his notes; that if he would pay the notes and she could sell her house, she would be all right. About two months before her death the said Mrs. Ham told T. "W. Nelson that if she could séll her place at Flovilla, she would not have to borrow any money to pay on the place they were buying here (in Jackson). About a month before her death Mrs. Iiam told John Billie Mays, that she was going to sell her home at Plovilla and put the money in the place she and Judge Ham were buying in Jackson.”

The defendant in error moved to dismiss the bill of exceptions, upon the ground that no brief of evidence was incorporated in either the bill of exceptions or in an approved brief of the evidence. The ruling that should be made upon this motion is not altogether free from difficulty; but after considering the question we are oh the opinion that the bill of exceptions substantially complies with ■ the statute whieh requires that the evidence, or enough of the evidence' to make clear the issue involved, is set forth in the bill of ‘ exceptions. It is insisted that the recital that the plaintiff' introduced evidence “ proving that,” etc., shows that what purports to be a brief of the evidence is nothing more than a conclusion of the judge as to what the evidence established; but. we cannot agree with this contention. We think that the expression “proving,” as here used, is the equivalent of “in effect,” or “in substance,” or “in brief,” the evidence following; that where it is recited that evidence was introduced proving certain facts stated, it is meant that there was evidence introduced as follows that expression there used. If the bill of exceptions had recited that the plaintiff introduced evidence “ in effect ” as follows, or “ m substance as follows, it would hardly be contended that the bill of exceptions did not contain a brief of the evidence. Construing the expression “proving” as equivalent to “in effect” or “in substance,” we roach the conclusion that what is set forth in the form of evidence is a brief of the evidence. The conclusion that we have here reached is strengthened by a reading of the entire brief of evidence. It is true that all of the ■evidence is connecled with the evidence “proving that;” but when we read the statements following that expression, we see that it is a clear and brief recital of the facts, and is not in the form of a statement of a mere conclusion either of the judge or of counsel for the pontiff in error.

2. The evidence was sufficient to authorize the jury to find that the deeds were not delivered during the life of the grantor, which is essential to constitute a valid conveyance. Baxter v. Chapman, 147 Ca. 438 (94 S. E. 544). Under such a finding the plaintiff would have been entitled to a verdict and judgment in his favor; and accordingly it was error to award a nonsuit.

■Judgment reversed.

All the Justices concur, except HUI, J., dissenting, and Fish, C. J., absent on account of siclcness.

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Dissenting Opinion

Hill, J.,

dissenting. I dissent from the ruling made in headnote 1 (a). I do not think that such a brief of the evidence is incorporated in the bill of exceptions as is contemplated by the Civil Code (1910), § 6140. What is incorporated therein amounts to the conclusion of the presiding judge, or the attorney for the plaintiff in error. It. does not appear as a brief of the evidence at all, but recites that the “ plaintiff offered evidence proving that,” etc. The section of the code, supra, provides that the plaintiff in error “shall incorporate in the bill of exceptions a brief of so much of the written and oral evidence as is material to a clear understanding of the errors complained of.” In the absence of “ a brief ” of the evidence in the bill of .exceptions, or therein specified and shown in the record, I am unable to say whether the facts as set out were “ proved ” or not.