Estill v. Estill

• Decision Date: 27 September 1919
• Docket Number: 1126,1169.
• Citation: 100 S.E. 365,149 Ga. 384
• Parties: ESTILL ET AL. v. ESTILL ET AL. (TWO CASES).
• Court: Georgia Supreme Court

100 S.E. 365

149 Ga. 384

ESTILL ET AL. v. ESTILL ET AL.

(TWO CASES).

Nos. 1126, 1169.

Supreme Court of Georgia

September 27, 1919

Syllabus by the Court.

Where upon a material issue in a case, the evidence in behalf of one party is positive, and the evidence in behalf of the opposite party is negative, it is error to instruct the jury "The existence of a fact testified to by one positive witness is to be believed rather than such fact did not exist because many witnesses who had the same opportunity of observation swear that they did not see or know of its having transpired. This rule does not apply when, two parties having equal facilities for seeing or hearing a thing, one swears that it occurred, the other that it did not," without the qualification that the witnesses in other respects are found to be equally credible. Humphries v. State, 100 Ga. 260, 28 S.E. 25; Atlanta Consolidated Street Ry Co. v. Bigham, 105 Ga. 498, 30 S.E. 934; Southern Ry. Co. v. O'Bryan, 115 Ga. 659, 42 S.E. 42; Atlantic Coast Line R. Co. v. O'Neill, 127 Ga. 685, 56 S.E. 986; Alabama Great Southern R. Co. v. Brock, 139 Ga. 248, 77 S.E. 20; Ware v. House, 141 Ga. 410, 81 S.E. 118; Georgia Railroad, etc., Co. v. Radford, 144 Ga. 22, 85 S.E. 1006. Consequently the trial judge did not err in granting a new trial on the ground assigning error upon the instruction just quoted.

Where the paternity of a child is the issue involved, the declarations of the reputed father, since deceased, are admissible in evidence, under section 5764 of the Civil Code of 1910, which provides: Pedigree, including descent, relationship, birth, marriage, and death, may be proved either by the declarations of deceased persons related by blood or marriage, or by general repute in the family, or by genealogies, inscriptions, 'family trees,' and similar evidence." The weight to be given the declarations is a matter for the jury.

(a) The case of Mobley v. Pierce, 144 Ga. 327, 87 S.E. 24, differs on its facts from the present case, and does not require a contrary holding.

Hill, J., dissenting in part.

Suit by E. P. Estill, guardian, against the Citizens' & Southern Bank of Savannah, which interpleaded J. H. Estill and others. Verdict for plaintiff, motion for new trial granted, and plaintiff brings error, and defendants Estill and others take a cross-bill of exceptions. Judgment on both bills of exceptions affirmed.

Where evidence for one party on a material issue is positive, and that for opposite party is negative, an instruction that existence of a fact testified to by one positive witness is to be believed rather than its negation by numerous witnesses having same opportunity of observance, and that rule does not apply when two parties have equal facilities and one swears that a thing occurred, and the other that it did not, without qualification that witnesses in other respects are found to be equally credible, was error.

John Holbrook Estill died on November 9, 1907, leaving a will the eighth item of which was as follows:

"And to the Citizens' & Southern Bank of Savannah one-sixth part, which it shall hold as trustee upon the following uses and trusts, namely, to pay the income therefrom to my son, Marion W. Estill, during the term of his natural life, for the support of himself and the support and education of his children, should he leave any, and after his death said income to be applied to the support and education of his children, the principal to be equally divided between them when the youngest child attains the age of twenty-one years. In the event of the death of either of said children during minority and without leaving issue, the share of the one so dying shall go to the survivor or survivors, children of a deceased child to represent the parent. If, however, my son, Marion W. Estill, should depart this life leaving no child or issue of a child him surviving, then the one-sixth part shall be equally distributed between the distributees of the other five-sixths in the manner provided in this item."

Marion W. Estill, the son named in the foregoing item of the will, died on December 26, 1915. Marion W. Estill married Elizabeth Pate on October 30, 1902. After the death of Marion W., Mrs. Elizabeth Pate Estill, as guardian of Virginia Estill, alleged to be the child of Marion W. Estill and Elizabeth Pate Estill, called upon the Citizens' & Southern Bank of Savannah to pay to her the income which she claimed was rightfully due to her as guardian and as next friend of Marion Virginia Estill, under the eighth item of the will of John Holbrook Estill. The bank refused to pay over the income to the guardian, and the guardian filed suit against it in Chatham superior court. The bank filed a petition for interpleader, in which it alleged that it had been notified by the other legatees and claimants under the will of John Holbrook Estill that Marion W. Estill died without children or issue or child surviving him, that Marion Virginia Estill was not his child, and that she was not entitled to receive the income under the will. The parties at interest were required to interplead. Marion Virginia Estill, by her mother, Elizabeth Estill, as guardian and as next friend, filed an answer setting up the claim of the minor to the trust fund, and praying that the trustee be directed to pay the income of the trust property to the guardian. The heirs of John Holbrook Estill, entitled under his will to the property in the event Marion W. Estill died without child or the issue of child surviving him, in their answer alleged that Marion Virginia Estill was not the child of Marion W. Estill, but that the said Marion Virginia Estill was taken as an infant by Marion W. Estill and his wife, Mrs. Elizabeth Pate Estill, and claimed as their child for the purpose of securing to Elizabeth Pate Estill control of the income from the property in question and for the purpose of depriving the defendants of the same. The cause came on for trial at the November term, 1916, of Chatham superior court. The jury returned a verdict in favor of the guardian, and the defendants filed a motion for new trial, which was granted by the court. To this grant of a new trial the guardian filed exceptions, and the judgment of the court was affirmed by the Supreme Court at the October term, 1917. Estill v. Estill, 147 Ga. 358, 94 S.E. 304. In April, 1918, the case was again submitted to a jury in Chatham superior court. The plaintiff relied upon positive evidence, while some of the evidence for the defendants was negative in character.

The court, over objection of defendants, admitted in evidence the declarations of Marion W. Estill, made after September 9, 1912, tending to show that Marion Virginia Estill was his child. The ground of objection was that the declarations were made post litem motam. For the most part these declarations were contained in letters written by Marion W. Estill, while absent from his home, to his wife and to Marion Virginia. At the time the letters were written neither the paternity of the child nor her right to claim under the will of J. H. Estill, had ever been questioned by any member of the Estill family, so far as the record disclosed. In his charge the court instructed the jury as follows:

"The existence of a fact testified to by one positive witness is to be believed rather than such fact did not exist because many witnesses who had the same opportunity of observation swear that they did not see or know of its having transpired. This rule does not apply when, two parties having equal facilities for seeing or hearing a thing, one swears that it occurred; the other that it did not."

The jury returned a verdict in favor of the plaintiff. The defendants moved for a new trial, which was granted, upon the ground that the court erred in giving the above-quoted instruction (30th ground of the motion). The plaintiff sued out a writ of error, excepting to the judgment granting a new trial. The defendants, by cross-bill, excepted to the refusal of the court to grant them a new trial upon other grounds set out in the motion, and especially upon the grounds assigning error upon the ruling of the court in admitting evidence of the written and oral declarations of Marion W. Estill to the effect that Marion Virginia Estill was his child.

W. B. Stubbs, G. N. Alford, and Oliver & Oliver, all of Savannah, and Jas. K. Hines, of Atlanta, for plaintiffs in error.

Osborne, Lawrence & Abrahams, Robt. L. Colding, and T. P. Ravenel, all of Savannah, for defendants in error.

PER CURIAM.

Judgment on both bills of exceptions affirmed. All the Justices concur, except ATKINSON, J., disqualified, and HILL, J., dissenting from the ruling in the second headnote.

HILL J. (dissenting).

I dissent from the decision of the majority of the court, so far as the second division of the opinion is concerned. Whether the letters and declarations objected to are admissible in evidence depends upon whether they were written or made ante litem motam, before the origin of the controversy, or whether they were written or made post litem motam, after the controversy arose on the question at issue. The weight of authority is to the effect that declarations made by a reputed father or relative are admissible in evidence to prove pedigree, provided they are made without reference to any controversy which is about to arise as to such disputed fact. One of the earliest, and perhaps the leading case on the subject is that of William Fitzharding Berkeley, claiming as of right to be Earl of Berkeley, etc. reported in 4 Camp. 401. In that case it appeared that Frederick Augustus Berkeley, fifth Earl of Berkeley, died on August 8, 1810. During the same year the claimant presented a petition praying that a writ might be issued...