Robson v. Harris

82 Ga. 153 | Ga. | 1888

Bleckley, Chief Justice.

Harris, a tenant or cropper of Robson, trustee, died. His widow applied for a year’s support, under section 2571 of the code. The appraisers made and returned a schedule of the property set apart by them, which included a one-half interest in the crop produced that year (1887) on the premises. It seems Harris died before the crop matured, and perhaps before the work of cultivation was finished. Robson, as trustee, filed objections to the return of the appraisers, setting up title to the crop under a contract with Harris as his cropper, and urging a claim for supplies, etc. furnished to Harris and family. His objections were overruled by the ordinary, and he appealed.

1. At the trial of. the appeal, the widow introduced no evidence except the return of the appraisers. Thereupon Robson moved for a nonsuit. The motion was overruled. The return of the appraisers was prima facie correct, and it was for the objector to attack it by evidence. It needed no vindication until after thus attacked. Mere objections to it, unsupported by evidence, counted for nothing. In raising the issue of title to the crop in this proceeding, Robson was a plaintiff, not a defendant. The widow could not recover and did not seek to recover the crop from him by having it set apart as a year’s support. If it' was not the property of her husband’s estate without this proceeding, it could not become so by reason of the proceeding had not Robson voluntarily come in to raise that issue. Eor her to have a year’s support set apart out of his property would have been no prejudice to his. title. His rights as owner would have been the same afterwards as they were before. Burks vs. Beall, 77 Ga. 271. And certainly in his character of creditor, the burden was upon him to show that the return of the appraisers was wrong, and not upon her, in the first instance, to show that it was right.

2. Robson produced an instrument of writing purporting to be a contract executed by Harris and himself as trustee, and offered himself as a witness to prove its execution, and that he had furnished Hands and wife, under the contract, supplies amounting to $150.00, as shown by an itemized account, also produced and offered in evidence. He proposed to testify further that none of the account had been paid, and that the crop was his property as trustee, and not the property of Harris. The court held him incompetent as a witness, Harris being dead. Neither the contract nor the itemized- 'account being otherwise proved, they also were excluded.

Was Robson a competent witness to prove the execution of the contract, and that supplies were furnished under that contract.? Harris, the- other party to the contract, was dead, and hence to ■ permit Robson, the surviving party,' to testify in his own favor, would be to violate the statute. Code, §3854. It was said the estate of Harris would riot be affected, as his administrator was not a party to the cause on -trial. But his widow was a pai’ty, and she represented the estate in this litigation as fully as does an administrator in other cases. Her year’s allowance is put by statute on the footing of ■expenses of administration. Code, §2571, supra. Hpon an issue of title raised by Robson, she was before the court claiming the property in controversy as a part of the estate of her deceased husband, and if his estate would not be affected by the result, no case could arise in which it would be affected. In so far as the year’s support is concerned, she had all the rights and protection of an administrator, besides those ■ of a beneficial ownership in the fruits of the judgment.

3. It is plain from the record; that the title to the half of the crop in controversy depended on the alleged contract and the state of the accounts between the landlord and his deceased tenant or cropper, whichever he might have been. This being s,o, Robson was no more competent to prove that the whole crop was his, than to prove the contract and the standing of the account. To allow him to testify in general terms that the crop belonged to him, when he was incompetent to testify to the facts on which his ownership rested, would be an evasion of the statute. And the same might be said as to the non-payment of the account. Indeed, so long as the account was not proved, its non-payment had no significance and was totally irrelevant. It is scarcely worth while to add that, unless the contract and the account were proved by competent evidence, they could not be received, and there was no error in excluding them. There was no offer by Eobson to testify separately to any particular part of the account, as, for instance, such items as may have been furnished to Mrs. Harris, either in the lifetime of her husband or after his. death. The offer was, not only to prove it as a whole, but that it all accrued under the alleged contract with the deceased husband. This appears from the sixth ground of the motion for a new trial.

The verdict was satisfactory to the presiding judge,, and we leave the responsibility for it where he did, upon the jury that rendered it. There was no error in refusing a new trial.

Judgment affirmed.