Mickle v. Moore

• Decision Date: 12 November 1941
• Docket Number: 13912.
• Citation: 17 S.E.2d 728,193 Ga. 150
• Parties: MICKLE et al. v. MOORE.
• Court: Georgia Supreme Court

17 S.E.2d 728

193 Ga. 150

MICKLE et al. v. MOORE.

No. 13912.

Supreme Court of Georgia

November 12, 1941

Syllabus by the Court.

1. Where in response to an objection of a general nature to evidence the court states that it is admitted for a limited purpose, and the objecting party makes no further objection thereto, no valid assignment of error can be based upon the court's act in admitting the evidence.

2. Where the suit is for specific performance of a parol contract by the terms of which, in consideration of services to be rendered by petitioner, a bequest of property was to be made in a will, a charge by the judge that the plaintiff must carry the burden of proof by a preponderance of the evidence except that the plaintiff must prove the contract and all its terms by evidence so clear and convincing that it convinces the jury beyond a reasonable doubt, is not subject to the criticism that it is confusing and prejudicial in that it confuses and intermingles the two rules relating to burden of proof and preponderance of the evidence, or that it improperly submits the two rules.

3. Where in such an action the defendants introduced evidence showing that at the time the alleged contract was executed the party did not own the property she contracted to bequeath, but that she subsequently acquired title thereto, a charge that the property thus subsequently acquired was subject to the terms of the contract is not subject to the criticism that it was not authorized by the issues made in the pleadings and was a reply to the defendants' evidence which was intended only to show that the party, being without title at the time would not likely have entered into the contract.

4. The contract as alleged was established by the positive testimony of two witnesses; and although numerous circumstances were proved to discredit this testimony, these circumstances merely went to the credibility of the witnesses, which is a matter to be determined by the jury. The verdict is supported by the evidence, and there is no merit in the general grounds of the motion for a new trial.

Miss Dillie Moore filed suit for specific performance against H J. Mickle as administrator with the will annexed of the estate of Mrs. G. M. Moore, and six named persons as the heirs at law of Mrs. G. M. Moore. In the petition it was alleged that the plaintiff's mother, Mrs. G. M. Moore, was seventy-seven years of age, crippled, and practically an invalid when the plaintiff's father died in April, 1932; that Mrs. Moore requested the plaintiff to remain at home and take care of her during the remainder of her life, and promised as compensation therefor to make a will bequeathing to the plaintiff the home place, including about seventy acres of land [definitely described in the petition], the house, the household and kitchen furniture, farming tools, wagon, harness, and one farm mule; that the plaintiff accepted the offer of her mother, and fully and faithfully performed her duties under the contract by operating the farm and caring for her mother until her death; and that, while Mrs. Moore executed a will, she breached her contract by failing to devise to the plaintiff the property which she had promised her. In their answer the defendants denied the material allegations of the petition, and pleaded that the plaintiff was estopped from claiming under the alleged contract, by reason of the following facts: After the execution of the alleged contract, the plaintiff brought about the execution of a will by her mother, by the terms of which Mrs. Moore devised her property to the plaintiff and all the other children, except one, share and share alike. After the death of her mother, the plaintiff was active in procuring the probate of the will in solemn form, and filed no objections or caveat to the probate, and thus made an election to take under the will.

From the plaintiff's evidence at the trial it appeared that she was the only unmarried child in the family at the time of her father's death on April 28, 1932; that she had lived in the home of her parents and had waited upon them for eleven years or more at the time of her father's death; that her mother, who had been crippled for many years, was about seventy-seven years of age at that time, and her physical condition was such that she required constant care and attention; that the plaintiff thereafter remained in the home with her mother and gave her constant attention until her death in 1938, in addition to managing the farm and performing some of the labor required in its operation. Mrs. Sallie Bonner, a sister of the plaintiff and a legatee under the will of her mother, and Paul Moore, a nephew of the plaintiff and a son of one of the defendants in the suit, testified that they were present when the alleged contract was made between the plaintiff and her mother; that the contract as alleged was entered into a few days after the death of plaintiff's father when the plaintiff's mother agreed to give and devise to her the property described in the petition if she would abandon her arrangements to marry and remain in the home and care for her mother; and that the plaintiff thereupon agreed to look after her mother, and did thereafter fulfil her part of the contract. It appeared from the evidence that the plaintiff's mother obtained title to the property which is the subject-matter of the alleged contract under a year's support, which had not been set apart at the time the contract was entered into. The defendants introduced evidence to show that the plaintiff was present and was instrumental in obtaining the execution of the will by Mrs. Moore, on July 15, 1932; but the plaintiff testified that she did not know the paper executed was a will, and did not have any knowledge of the will or its contents until after the death of her mother. The defendants also introduced evidence that after the death of her mother the plaintiff prepared a deed conveying to herself the property sought by this suit, and had it presented to the heirs with request that they sign it as compensation for her services in caring for her mother; that in presenting this deed no mention was made of the alleged contract with her mother; and that there was exhibited to the heirs a writing by the mother, which in substance stated to the heirs that they could compensate petitioner in some amount, if they wished, for the services she had rendered her. It appeared from testimony for the plaintiff that she did not herself request any of the heirs to sign the deed referred to, but that her sister, Mrs. Sallie Bonner, did so request the heirs, and that they refused.

The jury returned a verdict for the plaintiff. The defendants moved for a new trial. The judge overruled the motion, and the defendants excepted.

R. O. Jones and Wm. Y. Atkinson, both of Newnan, Frank Gearreld, of Franklin, and J. L. Smith, of Carrollton, for plaintiffs in error.

Boykin & Boykin, of Carrollton, for defendant in error.

DUCKWORTH Justice.

1. The first special ground of the motion for a new trial assigns error on the ruling admitting in evidence the following receipt: 'January 1, 1933. Received of Mrs. G. M. Moore, for labor and overseeing of Mrs. G. M. Moore Estate for 1932, 1240 pounds of lint cotton at six cents per pound--$74.40. [Signed] Henry Moore.' When the receipt was offered in evidence by the plaintiff, counsel for defendants objected upon the grounds that it was irrelevant, immaterial, prejudicial, and not binding upon any of the heirs of the Mrs. G. M. Moore estate. The court thereupon ruled that the evidence was admitted as against the defendant Henry Moore, but not against the other defendants, and that it was admitted only to illustrate whether Henry Moore made a charge against the estate at the time the receipt was supposed to have been issued, and that it was not to be considered as an offset against the share of Henry Moore in the estate. No further objection was made by counsel for the defendants.

It must appear that objections were urged at the time evidence was admitted. It is not sufficient to urge grounds of objection for the first time in a motion for a new trial. Phillips v. State, 102 Ga. 594, 27 S.E. 699; Bourquin v. Bourquin, 110 Ga. 440, 35 S.E. 710; White v. State, 116 Ga. 573, 42 S.E. 751; Wynne v. State, 123 Ga. 566, 51 S.E. 636; Thompson v. Lanfair, 127 Ga. 557(2), 56 S.E. 770. The record shows that although defendants' counsel objected to the evidence when offered, a ruling of the court subsequently to that objection, limiting the evidence to one specific issue and to only one defendant, was not challenged. After such ruling by the court the defendants were aware of the purpose for which the evidence was admitted, and made no further objection to it. Therefore no valid assignment of error can be based on the ruling of the court in thus admitting the evidence. Bowers v. Southern Railway Co., 10 Ga.App. 367(6), 73 S.E. 677; Duckett v. Martin, 23 Ga.App. 630(4), 99 S.E. 151. This ground of the motion is without merit.

2. The second special ground assails a portion of the charge, on the ground that it is confusing. The charge complained of, in substance, states that in the case on...