Higgins v. Trentham
| Decision Date | 17 June 1938 |
| Docket Number | 12277. |
| Citation | 197 S.E. 862,186 Ga. 264 |
| Parties | HIGGINS v. TRENTHAM et ux. |
| Court | Georgia Supreme Court |
Error from Superior Court, Polk County; J. R. Hutcheson, Judge.
Suit by W. C. Higgins, as administrator of the estate of Mrs Josephine L. Clemmons, deceased, against J. W. Trentham and wife to cancel a deed and contract conveying land to the defendants and transferring to them certain personal property. To review a judgment for the defendants, plaintiff brings error.
Judgment affirmed.
Syllabus by the Court.
1. 'Declarations of a person since deceased, wholly in favor of the interest of the declarant, and which are not a part of the res gestae, are mere hearsay and not admissible in evidence.' Drawdy v. Hesters, 130 Ga. 161(2), 60 S.E. 451, 15 L.R.A.,N.S., 190. Ordinarily hearsay testimony is not only inadmissible but wholly without probative value and its introduction without objection does not give it any weight or force whatever in establishing a fact. Eastlick v. Southern Railway Co., 116 Ga. 48, 42 S.E. 499. See also, Berry v. Brunson, 166 Ga. 523, 532, 143 S.E 761, and cit.
(a) Accordingly in a suit by an administrator to cancel a written contract of purchase and a deed to land in pursuance thereof, executed by his intestate, on the alleged ground of fraud and undue influence, testimony as to subsequent declarations of the grantor, offered to show that the declarant was coerced into making the contract, was mere hearsay and of no probative value, although admitted without objection.
(b) So also was other hearsay testimony of no probative value that was admitted without objection.
2. The instruction, 'To establish incapacity in a grantor, he or she must have been shown to have been, at the time the contract was made, non compos mentis, which means entirely without understanding,' stated a sound principle of law as applied to the facts of this case, and was not confusing or misleading to the jury.
3. It was erroneous in a civil case to charge: 'After you have ascertained the facts, then you will apply the facts to the law, and then you are the sole judges of the law and the facts in this case;' but in the circumstances of the instant case the error was not cause for a reversal.
4. In so far as any of the grounds of the motion for a new trial complain of excerpts from the charge of the court as confusing and misleading, or as expressing an opinion on the facts of the case, they are without merit.
5. The evidence, considered in connection with admissions in the pleadings, was not sufficient to show that the contract and deed were procured by fraud or undue influence. Consequently grounds 6, 7, and 8 of the motion for new trial, complaining of the omission to charge the jury on those subjects and the subject of inadequacy of consideration of the contract, and other grounds complaining of different excerpts from the charge as given, which in effect excluded from the consideration of the jury the question of fraud and undue influence, and restricted the jury to consideration of the issues as to whether the intestate had mental capacity to make the contract, are without merit.
6. On the question of mental capacity to make the contract and deed, as submitted by the judge to the jury, the evidence, though conflicting, was sufficient to show mental capacity of the intestate at the time of making the contract.
7. Upon all issues the evidence, after giving due consideration to admissions in the pleadings, authorized the verdict for the defendants. The judge did not err in overruling the motion for a new trial.
W. C. Higgins as administrator of the estate of Mrs. Josephine L. Clemmons, deceased, filed a petition against J. W. Trentham and his wife, seeking to have canceled a deed and contract executed in March, 1935, conveying to the defendants two lots of land of forty acres each, and transferring to them certain personal property, in consideration of an agreement by the defendants to support her and pay all necessary expenses for the rest of her life and pay her $5 per month. Petitioner alleged that the personal property, consisting of household furniture and farm equipment and an old automobile, had a market value of $500 or $600; that the farm was worth $2500 to $3,000; that Mrs. Clemmons died in October, 1935; that (a) the intestate was 'non compos mentis, and wholly incompetent, mentally, to make a good and valid contract, or to understand its meaning and effect, all of which was known to the defendants;' that (b) 'the transaction was without adequate consideration, and the contract and deed were procured by the defendants by repeated demands, untrue reports, and information about the unfriendliness of her neighbors, and misrepresentation as to her situation for protection, by overpersuasion, undue influence, and an insistence and earnestness on the part of the defendants, which was irresistible by the said Mrs. Clemmons in her then condition, all of which conduct on the part of the defendants amounted to legal fraud against her and those entitled to her estate at her death, and as an unconscionable and inequitable advantage to the defendants.' The heirs at law of the deceased are nephews and nieces. Petitioner prayed that the defendants be enjoined from removing, selling, encumbering, or otherwise disposing of any of the personal property belonging to the intestate; that they be enjoined from disposing of the crops grown on the farm during the pendency of the suit; that they be required to bring into court and surrender the deed and contract in question; that by proper decree they be canceled; that petitioner have judgment against the defendants jointly and severally for mesne profits, and recover the realty and personalty which the deceased attempted to convey to them.
Copies of the contract and deed were attached to the petition as exhibits. The deed purported to convey only the land, and contained a general warranty of title in fee simple. By the contract the Trenthams as parties of the first part covenanted 'to support, provide for, maintain, and keep up the party of the second part during the remainder of her natural life in accordance with the condition and station in life of the party of the second part, and * * * to pay unto the party of the second party the sum of $5 each month during the remainder of * * * [her] natural life, and * * * to pay all doctor bills and other necessary expenses which the party of the second part may * * * incur, and * * * to keep all the premiums paid as they come due on the burial insurance of the party of the second part.' Also, 'to pay off all * * * mortgage...
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