Miness v. Miness, 42085
| Decision Date | 04 September 1985 |
| Docket Number | No. 42085,42085 |
| Citation | 254 Ga. 658,333 S.E.2d 574 |
| Parties | MINESS v. MINESS. |
| Court | Georgia Supreme Court |
John E. Pirkle, Hinesville, for James Ellis Miness.
A.G. Wells, Jr., Pembroke, for Jimmy Wallace Miness et al.
In this action to set aside a deed of gift, the jury found for the plaintiffs and the trial court entered an order cancelling the deed and vesting the property in the estate of the deceased grantor. Defendant, the grantee, now appeals.
Dorothy Miness, the grantor, was very ill during late 1982 and early 1983. In November 1982, she underwent surgery for a gangrenous leg and had part of her intestine removed. She had additional surgery in late January 1983. On February 1, 1983, Mrs. Miness executed a deed of gift to her son James Ellis Miness (appellant) conveying approximately 35.6 acres in two tracts of land in Liberty County. Ellis had farmed the property since the death of his father. The deed was executed in Mrs. Miness' room in a Savannah hospital. The only parties present in addition to Mrs. Miness were James Ellis Miness, his wife, and Archie Zorn, a friend of the family and notary public who had accompanied the Miness couple at the request of Ellis Miness. Zorn witnessed Mrs. Miness sign the deed and notarized it. Mrs. Miness left the hospital on February 19, 1983. She died June 7, 1983.
Appellees are heirs of Mrs. Miness and the executor under her will. They filed suit claiming the deed was invalid because Mrs. Miness was not mentally competent at the time of execution, that it was procured by fraud since Ellis Miness knew that his mother was incompetent, and that Ellis exercised undue influence in procuring his mother's signature.
1. Ellis Miness enumerated as error the refusal of the trial court to allow the testimony of witness Zorn as to a statement made by Mrs. Miness on the occasion of the execution of the deed in question. The heirs and executor argue the decision of the trial court was correct because the statement was hearsay and fit within none of the recognized exceptions to the rule against hearsay. We hold the statement was not hearsay.
Zorn first testified he accompanied Ellis Miness to his mother's hospital room where a brief conversation ensued concerning the families of Zorn and Miness. When asked what then happened, Zorn replied: At that point the witness was interrupted, counsel precluded from pursuing the line of questioning, the testimony stricken, and the jury admonished to disregard it. During jury deliberations counsel was allowed to make an offer of proof. Counsel stated that, if allowed to do so, Zorn would have testified that Mrs. Miness examined the deed and said, "That's not all the property?" And Ellis responded, "No, that's all." The two then had a conversation back and forth.
McCormick defines hearsay evidence as "... testimony in court, or...
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