180 Ga. 303 | Ga. | 1935
Mrs. Jennie Jenkins as-an heir at law of Mrs. L. Y. Stewart, deceased, filed a petition in the superior court against Coy I~I. Elliott individually, and D. P. Phillips as administrator of the estate of Mrs. Stewart, alleging that the defendant administrator was advertising for sale described realty of his intestate, subject to the liens of three security deeds, securing a note for $1500, dated January 1, 1923, besides interest, a note for $500 dated May 7, 1923, besides interest, and a note for $2000, besides interest, dated June 2, 1924, the $1500 and $500 deeds and notes having been executed by the deceased to Coy H. Elliott, and the $2000 note and deed having been made to one T. M. Starr and by him transferred to Elliott; that from 1923 to 1927 Elliott had collected the rents on said property and applied them to the payment of said notes, and that about September 1, 1927, said notes were paid in full. The prayers of the petition were that the administrator be enjoined from selling the property until the issues raised by the petition are determined, and that Elliott be required to account for the money collected by him for the intestate, and that the three loan deeds be canceled. The administrator in his answer stated that from information received by him, and based on his investigation, he believed the liens referred to in the petition were legal encumbrances against the property, but he prayed that “he
Plaintiff introduced a bank book showing that Mrs. Stewart had deposited $1480.17 in the bank from August, 1937, to March, 1931. Mrs. Moore, a sister of the deceased, testified: “I handled the bank account. I kept a book at my house. I made the deposits, all but one time when I was on my vacation, and she asked my sister to do it. . . I have a receipt for $435. I paid that money to Coy Elliott for Mrs. Stewart. . . Coy did not say what the money was for. • I think the check was dated in March, and she died June 7, 1931. . . Mr. Coy Elliott never said anything to me about some notes that he held against Mrs. Stewart.” I. M. Starr testified that he sold the $3000 note and security deed executed to him by Mrs. Stewart to Coy Elliott for “about $1500,” and that before then Mrs. Stewart had paid him four. or five hundred dollars on it. Coy H. Elliott testified that he collected rent on the store of Mrs. Stewart, amounting to from $40 to $75 per month, and gave the money to her; also: “I never borrowed any money from Mrs. Stewart to buy cattle. She paid me some money for interest. She paid me $450. . . This loan that she got from I. M. Starr was $3000. I paid Mr. Starr $1500 on that
The first special ground of the motion for a new trial presents the contention that the court erred in directing the verdict, because there were issues of fact which should have been submitted to the jury. Grounds 2 and 3 complain of the refusal of the court to allow the plaintiff, Mrs. Jenkins, and another witness, plaintiff’s sister, Mrs. Moore, to testify as to conversations with the intestate. This rejected testimony was to the effect that the $450 referred to by Coy IT. Elliott was loaned to him by Mrs. Stewart for the purpose of being used by him in the purchase of cattle, and that Mrs. Stewart told both these witnesses about the time she opened her savings account in 1927 that she “did not owe anything.” Counsel for defendants objected to this evidence, on the ground that it was a communication between witnesses and a deceased person, and the court sustained tire objection and excluded the testimony. Ground 4 assigns error on the refusal of the court to allow a witness to answer the following question propounded by plaintiff’s counsel: “If Coy Elliott had one note for $2000 and notes for $500 and $1500, signed by Mrs. L. V. Stewart, and all these notes were destroyed by fire about two years before the death of Mrs. Stewart, what in your opinion would he have done ?” The objection was that the question was immaterial and irrelevant.
The trial now sub judice did not involve any issue except the state of the alleged indebtedness of the intestate to Coy IT. Elliott, by reason of which the administrator was seeking to sell the property described, subject to the claims of Elliott. The administrator’s advertisement of the sale nowhere states that the property is to be sold for the payment of debts, etc., as is usual in such cases, but specifically states that the property is sold subject to the securities held by Coy IT. Elliott. From the advertisement an inference that there are no other debts due by the intestate would seem to be authorized. We have made this reference to this portion of the record to show that the administrator in this case is merely a nominal party, and therefore the statute (Code of 1910, § 5858) which forbids a party to testify as to communications and transactions with an intestate is not applicable in this suit, which is really an action between one of the heirs at law and an alleged creditor
In many cases the question whether a judge errs in directing a verdict is not confined to a review of the evidence admitted to the jury, but extends also to the merit of evidence which is excluded from consideration of the jury. In such cases the real question is, what should have been the verdict if the jury had been permitted to pass on the evidence excluded, together with that which was admitted. It would never do to hold that the court could properly direct a verdict merely because the remainder of the evidence, after the court by rulings upon evidence had subtracted material evidence, was insufficient to authorize any other verdict than that which the court directed. The jury may be authorized to raise a potential
We think our holding upon the admissibility of this evidence is
From the above citations it will be observed that this court has held that heirs at law, not being legal representatives of the estate, could testify and be testified against as to communications with the deceased. From this it follows that the testimony which the court repulsed could be excluded only upon the ground that the administrator was indeed a party, and not merely made a party for the single and sole purpose of maintaining the status until the issue between the real parties • could be determined. The excluded testimony was objected to upon the sole ground that it was evidence as to communications between the witnesses and a deceased person. The evidence was not subject to objection upon this ground. It may be that for other reasons, had they been given, this evidence should have been held to be inadmissible.
Judgment reversed.