Hines v. Donaldson

• Decision Date: 16 April 1942
• Docket Number: 13996.
• Citation: 20 S.E.2d 134,193 Ga. 783
• Parties: HINES v. DONALDSON et al.
• Court: Georgia Supreme Court

20 S.E.2d 134

193 Ga. 783

HINES v. DONALDSON et al.

No. 13996.

Supreme Court of Georgia

April 16, 1942

Syllabus by the Court.

1. The judge did not abuse his discretion in ruling on order of argument of counsel, in view of alignment of parties.

2. Reversal will not be ordered because of admission of hearsay evidence as to declarations made by persons since deceased where in numerous other instances similar testimony was admitted without objection, and the general character of examination of witnesses had made use of such test to determine general repute in the family as contemplated by the Code, § 38-303.

3. Complaint, in a motion for new trial, that certain evidence was rejected on direct examination, or ruled out, is incomplete and without merit when it fails to show what the evidence was or what the witness would have testified if permitted to answer the question.

4. In a legal proceeding where one asserts that she is the daughter of a deceased person, and for purposes of inheritance seeks an adjudication of such relationship testimony of declarations of persons since deceased, who are shown by other proof to have been members of the family of the alleged parent, may be received in evidence under the Code, § 38-303; and it is not necessary in such a case that the declarant be shown by independent proof to be related to the person seeking such adjudication, before such declarations can be admitted.

5. There was evidence to support the verdict.

Wilkes T. Thrasher and J. M. C. Townsend, both of Chattanooga Tenn., and Wright & Willingham, of Rome, for plaintiff in error.

Matthews, Owens & Maddox, Leon & Dean Covington, Barry Wright, and Henry J. Fullbright, Jr., all of Rome, and Dudley Magruder, Jr., of Summerville, for defendants in error.

REID Chief Justice.

Earl Donaldson, as trustee for his minor son, Harry Earl Donaldson, under a deed from Mrs. L. E. Donaldson, brought his suit seeking partition of certain realty, appointment of a receiver, etc., naming as defendants various parties claiming an interest in the realty by inheritance or purchase. He alleged that such minor was a grandson of Alexander Dougherty, Sr., whose will was probated in 1903, and that under the terms of item six thereof the testator gave to Mrs. Medora Howland for and during her natural life certain described realty in Rome, Georgia, with the provision that at the death of Mrs. Medora Howland the said realty should go 'to such of her children as survive her and to the representatives of such as may be dead, these latter taking in place of the deceased parent.' The deed under which the minor claimed and the pertinent provision of the will were made fully to appear and are not drawn in question. It was alleged that Mrs. Medora Howland had two children, but neither of them had any issue, and both of them had died. As to one of the defendants, Mrs. Eloise Howland Hines, the plaintiff alleged: 'Mrs. Hines claims that she is either a daughter or adopted daughter of the said Mrs. Howland, and is now entitled to the property described in item six of the will of Alexander Dougherty, Sr., * * * and for this reason the said Mrs. Hines is made a party hereto. However, plaintiff alleges on information and belief that she is not entitled to any right, title, interest or claim in or to said property.' The plaintiff prayed, among other things appropriate to the character of relief sought, 'that the interests of the various parties in and to said property be determined and fixed by a proper judgment and decree entered in the cause; * * * that all of the defendants hereto be required to set up their respective rights and interests in and to such property.' In her answer Mrs. Hines set out: 'This defendant is a daughter of the said Mrs. Medora Howland. This defendant admits that she is the daughter of the said Mrs. Howland by blood, and that she is now entitled to the property described in item six of the will of Alexander Dougherty, Sr., referred to in said paragraph, and is entitled to the entire fee-simple ownership in all of said property.' By amendment she alleged: 'That some two months ago, however, it came to her knowledge that she was known among some members of the family as actually being the granddaughter of Mrs. Howland, her mother having been Mamie Howland, a daughter of Mrs. Medora Howland, she having been taken by Mrs. Medora Howland as an infant and raised as her own child. That by reason of these facts coming to her knowledge she is unable to say in reality she is the daughter or the granddaughter of Mrs. Medora Howland, but this defendant shows that she is either the daughter or granddaughter of the said Mrs. Medora Howland, and that she is entitled to the property described in item six of the will of Alexander Dougherty, referred to in said paragraph, and is entitled to the fee-simple ownership in all of said property.'

Only one issue was submitted to the jury, it being in the form of two questions propounded, as follows: '1. Is Mrs. Eloise Howland Hines the legitimate daughter or granddaughter of Mrs. M. E. Howland? You will answer that question 'yes' or 'no' as you find the fact to be. 2. If you answer the foregoing question 'Yes,' then state whether you find her to be the daughter or the granddaughter as you may find the fact to be. If you should answer the first question 'no' then you need not answer this question.' The jury answered the first question 'No.'

At the conclusion of the evidence one of the two counsel for Mrs. Hines requested the court to allow him or his associate to argue immediately preceding the concluding argument of counsel for the plaintiff. The court ruled that one counsel for Mrs. Hines should argue after the opening argument, and the other one before the closing argument. Whereupon counsel for the plaintiff stated that he waived his concluding argument in favor of counsel for one of the defendants other than Mrs. Hines. To this counsel for Mrs. Hines objected. The court stated that counsel for the plaintiff could designate who should have the concluding argument for him. This was objected to by counsel for Mrs. Hines, on the ground that it would be highly prejudicial to the rights of the defendant to have one of the co-defendants in the case conclude the argument. At that juncture counsel for one of the co-defendants other than Mrs. Hines stated that he originally represented one of the co-defendants, Mrs. Mebane, and since her rights were identical with those of the plaintiff he had been retained, along with counsel for the plaintiff, to present the case to the jury, and that he would like to have permission to argue in conclusion 'on behalf of the plaintiff in this case.' The court overruled the objection of Mrs. Hines' counsel, stating that 'the plaintiff would have a right to designate who should conclude the argument for the plaintiff.'

Besides the general grounds of the motion for new trial filed in behalf of Mrs. Hines, the questions before us arise from three special grounds, in two of which complaint is made in respect to admission and rejection of testimony, and in one exception was taken to the order of argument of counsel permitted by the judge.

With the exception of one witness who undertook to give direct testimony as to the identity and pedigree of Mrs. Hines, the remaining evidence for the most part came from Mrs. Hines and members of the family of Mrs. Medora Howland, who was the daughter of Alexander Dougherty, Sr. The court and all counsel in the case treated it as one where resort might be had to the provisions of the Code, § 38-303, respecting proof of pedigree, etc.; and accordingly various witnesses testified as to declarations of members of the Howland and Dougherty family on the question whether Mrs. Hines was either the daughter or granddaughter of Mrs. Howland. The plaintiff and the defendants similarly interested sought to prove, by such declarations and by general repute in the family, that Mrs. Hines was not the daughter or the granddaughter of Mrs. Howland, but that instead she was the daughter of a Dutch maid who had worked in the home of the Howlands at a time when they lived in East St. Louis, Illinois, variously placed at some time about the year 1900, which would have been about the time of the birth of Mrs. Hines.

Earl Donaldson, the plaintiff, testified as follows: 'As to whether or not Mrs. Medora Howland, who was a daughter of Alexander Dougherty, Sr., left any children surviving her, well, no sir, she had two children, Rollie and Mamie, but they both died before Aunt Medora. Her husband is also dead. * * * As to whether or not I know from my own knowledge that Eloise Howland Hines is the daughter of Aunt Medora Howland, well, Aunt Dora said she was the daughter of a Dutch maid that was left at her house in St. Louis. I have heard my Aunt Dora say that herself. * * * It was way back there when they first came into Rome with her, and they were all talking about it, wondering who she was. * * * My mother and Aunt Vi and Dabney were all talking about it. * * * Aunt Medora was present several times when the child was discussed. Eloise Howland Hines was a very small child about four or five years old I would say. * * * I was about ten or eleven years old at that time.'

Mrs. L E. Donaldson, the mother of Earl Donaldson, who was the daughter of Alexander Dougherty, Sr., testified: 'I had a brother named Alexander also. Alexander Dougherty's children besides myself. * * * the oldest was Medora Howland, brother Alexander, Mrs. Viola Hill, and Alva Dougherty, and Dabney Dougherty. * * * Mrs. Medora Howland was Medora Dougherty. * * * They had two children. Their names were Rollie Howland and Mamie Howland. No, they are dead. Mrs. Howland did not leave any other...