Brooks v. Brooks
| Decision Date | 19 February 1937 |
| Docket Number | 12228. |
| Citation | 195 S.E. 869,185 Ga. 549 |
| Parties | BROOKS v. BROOKS et al. |
| Court | Georgia Supreme Court |
Error from Superior Court, Walton County; Blanton Fortson, Judge.
Equitable proceeding in the matter of the estate of Savannah Brooks deceased, by A. M. Brooks and another, against Alice Brooks and others. To review an adverse judgment, the named defendant brings error.
Affirmed.
Syllabus by the Court.
The general grounds of the motion for new trial are not argued in the brief of counsel for the plaintiff in error, and will not be considered. There is no merit in the special grounds.
John I Kelley, of Atlanta, and P. K. Burns, of Decatur, for plaintiff in error.
Roberts & Roberts, of Monroe, John I. Kelley, of Atlanta, and P. K Burns, of Decatur, for defendants in error.
This is the third appearance of this controversy in our courts of review. For the other decisions, see Brooks v. Brooks, 54 Ga.App. 276, 187 S.E. 687, and Brooks v. Brooks, 184 Ga. 872, 193 S.E. 893. For convenience, the litigation which culminated in the decision reported in 54 Ga.App. will hereinafter be referred to as 'Case No. 1'; the branch of the controversy which appears in 184 Ga. will be designated as 'Case No 2'; while the matters covered by the instant writ of error will be referred to as 'Case No. 3.'
Savannah Brooks died intestate, leaving four heirs, A. M. Brooks, Mary Brooks, Alice Brooks, and Helen Gross. Mary Brooks was appointed her administratrix. She owned, among other assets four certificates of deposit in the Loganville Banking Company. One of these stood in the name of Savannah Brooks or Mary Brooks; a second was in the name of Savannah Brooks or Alice Brooks; a third had been originally issued in the name of Savannah Brooks or M. M. Brooks, but was later changed to Savannah Brooks or Mary Brooks or Alice Brooks; the fourth was in the name of Savannah Brooks or Mary Brooks as guardian of Helen Gross. Before Savannah Brooks' death the Loganville Banking Company went into liquidation, and certain of its assets were exchanged for the certificates. It follows that the persons in whom were the titles to these certificates should have the assets they represent.
Case No. 1 originated in the ordinary's court on a citation for settlement brought by A. M. Brooks against Mary Brooks, the administratrix. C. L. Gross, as guardian of Helen Gross, joined in the citation. A judgment was entered, and from this an appeal was taken to the superior court by Mary Brooks, and in that court an investigation de novo was had before a jury. The main controversy there was whether the certificates of deposit belonged to the estate of Savannah Brooks. Mary, the administratrix, contended that they had been the subject-matter of gifts by Savannah Brooks to her daughters and granddaughter, and that consequently it was no part of her duty as administratrix to administer them. At the trial, specific questions were propounded to the jury, and the effect of their finding was that no gifts had taken place. A judgment followed, as of course, in favor of the heirs, for separate sums, against Mary Brooks, as administratrix. Mary Brooks moved for a new trial, and on this being refused she took the case to the Court of Appeals, presenting two main questions: (1) Had the lower court erred in approving the verdict that no gift had taken place? (2) Had the court erred in holding that she, Mary, was not a competent witness to testify as to communications with her mother on the subject of the alleged gifts? The Court of Appeals decided that there had been no error of the lower court as to either point. In the case in the Court of Appeals, Mary Brooks as administratrix was the sole plaintiff in error. The defendants in error were A. M. Brooks and C. L. Gross, guardian.
Case No. 2 arose from an equitable petition filed by A. M. Brooks and C. L. Gross, as guardian. Process issued, directed to Mary Brooks, Mary Brooks, as administratrix of Savannah Brooks, Alice Brooks, and several others. Many of the particulars involved in the equitable action are set out in 184 Ga., and will not be repeated here. During the trial Mary Brooks again attempted to set up title in herself to her part of the certificates of deposit, asserting that a gift had occurred from Savannah Brooks to her. She was met by the bar of res judicata arising from the decision in Case No. 1. This bar was upheld, 184 Ga. 872, 193 S.E. 893. Mary Brooks was the sole plaintiff in error in that case. Alice Brooks was one of the defendants in error. The extent of that decision is no further, therefore, than that at to Mary Brooks the question of title was res judicata.
Case No. 3, now before us, grew out of the same action in equity which was the basis of case No. 2. The matter proceeded to a verdict and decree. A general motion for new trial, based on the general grounds, was filed by 'the defendants' without naming them. Alice Brooks, styling herself as 'movant,' afterward amended this motion, setting up two special grounds. The motion was overruled, and Alice Brooks brought the instant writ of error. She is the sole plaintiff in error here. A. M. Brooks and several others are designated as defendants in error, but Mary Brooks is not a party.
On the trial, in answer to specific questions, the jury decided (1) that Savannah Brooks did not give to Alice Brooks the interest in Mrs. Brooks' share of the assets remaining in the Loganville Bank, represented by the certificates payable to Alice Brooks, and a half interest represented by the two certificates payable jointly to Mary Brooks and Alice Brooks; and (2) that Mrs. Brooks had made no contract with Alice Brooks that said assets were to be transferred to Alice Brooks as compensation for services rendered Mrs. Brooks by Alice. In an amendment to her motion for new trial Alice Brooks makes two points: (1) That the judge erred in holding that she was incompetent to testify that Savannah Brooks gave her the certificates; and (2) that the judge erred in holding Alice Brooks incompetent to testify as to communications with Savannah Brooks, as to the latter having given the certificates (or the assets represented by them) to Alice as compensation for services rendered.
We are of the opinion that the court below was right in holding Alice Brooks incompetent to testify as to the communications between her and Savannah Brooks, who was deceased. Mary Brooks as administratrix was originally a party to this equitable action. In the original petition it was stated in paragraph 1, 'Mary Brooks is the duly qualified administratrix of the estate of Savannah Brooks,' and this allegation was admitted in the answer filed by Alice Brooks. Relief was asked for against the administratrix, and it was prayed 'that Mary Brooks, as administratrix of Savannah Brooks be served as a defendant in this proceeding.' There was an order that the petition be served on the named defendants, and there was a return of service by the deputy sheriff as to seven of them, including Mary Brooks. We take it that all this was quite sufficient to bring the administratrix of Savannah Brooks before the court. It is true that both the administratrix and Alice Brooks were denominated defendants, and, as we understand the contention of counsel, it is that the two were not 'opposite parties,' within the meaning of the Code, § 38-1603. We cannot agree to this contention. We think the Code section, in view of the underlying reason for its existence, must be held to embrace a situation such as is here presented, and should not be defeated by too narrow a construction of the phrase 'opposite party.' The application which in the instant case we give to the words 'opposite party' finds support in the decisions of the courts of other jurisdictions. In Eslava v. Mazange's Adm'r, 8 Fed.Cas., pp. 780, 781, No. 4,527, it was held that a provision in a statute of the United States that in actions against executors, administrators, or guardians, neither party shall be allowed to testify against the other as to any transaction with the testator, intestate, or ward, unless called to testify thereto by the opposite party, the 'opposite party' meant is that party against whom the evidence is sought to be used, and an intervener whose interests are the same as that of the plaintiff is not an 'opposite party' who may require the plaintiff to testify. Under a like statute of Tennessee it was decided that it is not necessary that a witness shall be the 'opposite party' on the record in a case, in order to be incompetent, if his interests are antagonistic to those of the personal representative against whom he is called. Hill v. McLean, 78 Tenn. 107, 10 Lea 107, 114; Trabue v. Turner, 57...
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