Lamar v. Allen
| Decision Date | 20 July 1899 |
| Citation | 33 S.E. 958,108 Ga. 158 |
| Parties | LAMAR et al. v. ALLEN et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The finding of an auditor on an issue of fact, when the evidence is conflicting, which has been approved by the judge of the superior court, will not be disturbed by this court.
2. The present case was one peculiarly appropriate for reference to an auditor, and it was therefore not error to appoint an auditor therein, notwithstanding some of the parties objected to such reference.
3. Relationship cannot be proven by general repute in the community.
4. There is in this state no constitutional right to a trial by jury in an equity case.
5. Under the provisions of the present Code of this state, a party is not entitled to have exceptions of fact to an auditor's report in an equity case passed upon by a jury unless the judge approves such exceptions.
6. There was no error committed by the judge in refusing to approve the exceptions of fact which were filed to the auditor's report, nor were his rulings on the exceptions of law which we have found necessary to review in any way erroneous.
Error from superior court, Richmond county; E. H. Calloway, Judge.
Suit by Richard Lamar and others against J. M. Allen, administrator and others. Judgment for defendants. Plaintiffs bring error. Affirmed.
Russell & Rosenfield, for plaintiffs in error.
W. H. Barrett, C. A. Picquet, J. J. Foster, W. K. Miller, E. B. Baxter, Lyons & Porter, H. Phinizy, J. M. Walton, and H. C. Hammond, for defendants in error.
Richard Lamar, a negro, died testate on March 26, 1885. His will, which was executed May 24, 1879, was duly proven and admitted to record, and contained the following item: "I devise and bequeath to my daughter, Malinda Blair, my two adjoining lots of land on Center and Walker streets, in the city of Augusta, known on William Phillips' new map of said city by the letters 'A' and 'B,' for her sole and separate use during her natural life, and at her death for the use of my son Daniel Lamar during his life, and at his death to his children, if he has any and they survive him, per stirpes, but, if he should die without issue, then for the use of my brother and sister and their heirs forever." Malinda Blair died, and Daniel Lamar took possession of the property, and lived upon the same until January 8, 1897, when he died without issue. On September 25, 1897, Richard Lamar and others filed a suit to recover one-half interest in the property described in the item of the will above quoted; setting up that they were the descendants of Pompey Lamar, who was the brother of the testator referred to in the will. John Harper and others became parties to the proceedings, and set up that they were the children of Daniel Harper, who was the brother referred to in the will of Richard Lamar. Judy Few also became a party to the case, asserting that a negro named "Jim" was the only brother Richard Lamar ever had; that Jim died without descendants, and that her father, whose name was Charles, was the brother of the mother of Richard, the testator; and that, therefore, she is entitled to the one-half of the estate which would have gone to the descendants of Jim, the brother, if he had died leaving issue. John M. Allen, as administrator de bonis non with the will annexed of Isabella Maxwell, was also a party to the case. The parties to the case were 21 negroes and John M. Allen, administrator of Isabella Maxwell. The case was referred to Irwin Alexander, Esq., as auditor. It was admitted that Isabella Maxwell was the sister referred to in the will. The auditor found that Daniel Harper was the brother referred to in the will, and that, therefore, his descendants were entitled to take the one-half interest in the property. To the report of the auditor the plaintiffs in the original petition filed exceptions both of law and fact. Such questions of law as are raised by these exceptions will be referred to hereafter. The court disallowed all of the exceptions of fact, overruled the exceptions of law, and directed a verdict in accordance with the report of the auditor, and the plaintiffs excepted.
1. The evidence shows clearly that Richard Lamar had no brother in life at his death, nor at the time the will was made. The case was disposed of on the theory that the word "brother" in his will would include the descendants of a brother who was dead when the will was made; and no question was raised in this court, nor does it seem that any question was raised at any stage of the litigation, as to whether this was the proper construction to be placed upon the will. We do not mean by this reference to the matter to intimate that such a construction of the will would be erroneous, but call attention to this fact that nothing here said may be construed to be a ruling by this court on this question either one way or the other. The investigation before the auditor was directed solely to the determination of who was the brother referred to in the will. The pleadings disclosed that there were three persons who were claimed to be the brother in question. One was Pompey, the ancestor of the plaintiffs in the original petition, who died a slave many years before the will was made, and who, it was claimed, was a full brother of Richard, the testator; another was Daniel Harper, the ancestor of those in whose favor the auditor found, who was the half-brother of the testator; and the other was the negro Jim, who was alleged to have died without issue. The brief of evidence in the record discloses a mass of testimony which was introduced before the auditor to determine this puzzling question as to who was the brother of this deceased negro. The investigation was evidently tedious and laborious, and must have occupied days in the hearing of testimony alone; and from this mass of conflicting testimony, delivered by witnesses some of whom were ignorant, others possibly unreliable and willing to testify to any state of facts necessary to establish their contention, the auditor had to determine, so far as it was possible to do so, the truth about the matter under investigation. There is evidence in the record to support the finding of the auditor in favor of the descendants of Daniel Harper; but there is also evidence which would have authorized a finding that Daniel Harper was not the brother referred to in the will, but that that brother was Pompey, the ancestor of the original petitioners. We cannot from this record determine what is the truth of this matter. The auditor had the witnesses before him, and there is evidence to authorize his finding. The judge of the superior court has not seen proper to overrule the auditor, and we decline to interfere.
2. The plaintiffs objected to the appointment of an auditor, and this is one of the errors assigned in the bill of exceptions. The Code provides that the judge of the superior court, in equitable
proceedings, if the case shall require it, may refer any part of the facts to an auditor to investigate and report the result to the court. Civ. Code, § 4581. The judge evidently was of opinion that the case required such reference, and that reference of all the facts to the auditor was proper. As a matter of fact, there was but one question to be determined,--that is, who was the brother of Richard Lamar,--and a reference of any part of the facts necessarily required a reference of the entire case. We cannot say that the judge erred in concluding that the case was one for submission to an auditor. An examination of this record satisfies us that this was a case in which reference to an auditor was peculiarly appropriate. No jury could have dealt with the mass of conflicting testimony in as satisfactory way as the same was dealt with by the intelligent and able auditor to whom the case was referred.
3. During the investigation before the auditor, counsel for the plaintiffs asked a witness the following question: "What was the general reputation in Augusta as to the relationship between Dick Lamar and Pompey Lamar?" Objection was made to this question on the ground that matters of pedigree could not be proven by general reputation in the community. The auditor sustained the objection, and an exception to this ruling was overruled by the judge. Relationship may be proven by evidence of what is the general repute on the subject in the family. Civ. Code, § 5177. But we know of no law which authorizes evidence of the general repute in the community where the person lives or has lived to establish his relationship to any person. See, in this connection, 1 Greenl....
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