Poullain v. Poullain
| Decision Date | 21 April 1887 |
| Citation | 79 Ga. 11,4 S.E. 81 |
| Parties | POULLAIN v. POULLAIN and Others. (Two Cases.)1 |
| Court | Georgia Supreme Court |
In a suit for an accounting by a ward against his guardian, who was also his grandfather, in which it was sought to charge the guardian with the income of certain property alleged to have been given by him to his children and grandchildren, including complainants, there was evidence that defendant placed the property in the hands of two sons for the purpose of managing it, and paying over the income to the beneficiaries; that the income was disbursed to defendant's children and grandchildren, except complainants, the amount coming to whom was paid to defendant as guardian. Held, sufficient evidence to support a finding of a gift of the property, and that complainants were entitled to an account for their share of the income.
In a suit for an accounting by a ward against the guardian, a letter of defendant was introduced, stating that he had purchased a tract of land for his son, who was father of the ward, and who was then living. The son took possession and control of the place, and received the income. His widow testified that defendant, on taking possession after the son's death, told her that he would control the place for the benefit of her and her children, and it should be the same as if he had deeded it to them, and that, after defendant had sold it, he disclaimed the right to the proceeds, stating that such right was in the widow and children, and that he would manage such proceeds for their benefit. Several witnesses testitied to similar admissions by defendant, and lo admissions that he had bought the place for the son, and others testilied to improvements upon the land made by the son. Defendant denied the alleged gift or intended gift. Held, that the evidence supported a finding of a gift of the land to the son and his children, and that they were entitled to an account for the proceeds.
Actual manual delivery is not essential to the consummation of a gift inter vivos. Any act which indicates a renunciation of dominion by the donor and transfer of dominion to the donee, is sufficient; and this principle is equally true under Code Ga. § 2660, relating to gifts, and at common law.
In a suit for an accounting by a ward against the guardian, in which it is sought to charge the guardian with the income of property alleged to have been given by him to his sons and their children, including complainant, and in which the guardian set up a claim for expenditures for the support and maintenance of the ward, and asked for a decree for the balance, a refusal to charge that such income, if the jury And the ward entitled to it, was a part of the increase, and not of the corpus, of the ward's estate, and that it was not necessary for defendant to get an order of the court to allow him to expend the same for the support and education of the ward, is not error; especially, where the guardian had made no return of such expenditures to the ordinary, and had kept no account of them.
6. Aebitkation and Award—Guaedian and Ward—Accounting.
Where a submission to arbitration, in relation to the title to certain property, names a guardian as the first party, and the ward and others as the second parties, the latter being represented by the former, and having no interest in the subject-matter of such arbitration, the arbitration and award are inadmissible in evidence against such ward in an action by him against the guardian for an accounting for the income of such property, title to which is claimed by the defendant.
6. New Trial—Grounds for—Newly-Discoveeed Evidence.
A motion for a new trial on the ground of newly-discovered evidence, furnished by one who was a witness for the opposite party, and was examined and cross-examined on the trial, will be denied where no diligence and no interview with the witness are shown, and where the evidence appears to be cumulative and of doubtful admissibility.
7. Same—Gbounds foe—Admission of Evidence.
A new trial will not be granted for the alleged erroneous admission of evidence over a general objection, where such evidence is apparently admissible upon the main issues.
8. Same—Misconduct of Counsel.
The alleged improper conduct of counsel, in his argument to the jury, in reading and commenting upon a former decision of the case rendered by the appellate court, cannot be successfully assigned as error, where the appellant, at the time, made no objection, and took no exception thereto.
Error from superior court, Greene county; Lawson, Judge.
the bill in this case alleged that Junius Poullain, the father of complainants, died in 1862, and that defendant, their grandfather, became their guardian; that in 1863, defendant, as guardian of complainants, received from the administrator $1,600, the amount of their share in their father's personal estate. This was all the defendant charged himself with, although in fact he had received other sums. That at the time of the death of complainants' father, defendant, as naked trustee for the latter, held title to a plantation in Floyd county; that defendant took possession of such plantation, and sold it without notice to the purchasers of complainants' rights, and that thereby defendant became liable to each of complainants for one-third of $10,000, that being the amount of the proceeds of such sale; that complainants owned an undivided one-seventh interest in the Fontenoy mills, from which defendant had received large sums as their guardian; that complainants had a one-eighth interest in the estate of their uncle, William S. Poullain, who died in 1862, and that defendant suffered their right to share in that estate to become barred by the statute of limitations; that complainants had received nothing from defendant except a support and education, and a house and lot in Greens borough, furnished to them and their mother in 1879. The bill prays for account and settlement.
The answer admits the receipt of the $1,600, and alleges that defendant invested it in Confederate money, and that it was lost. It denies that complainants or their father had any interest in the Floyd county plantation, or the Fontenoy mills, and alleges that both belonged to defendant. The answer further sets up an account for advances, amounting to $14,294.89, and prays for a decree tor the balance. The answer also alleges that in April, 1879, defendant was discharged as the guardian of Anna M. Poullain; that her cause of action arose before June, 1865, and that not having brought her action within 9 months and 15 days thereafter, she is barred. It alleges that defendant Is still the guardian of Hallie B. Poullain, and, as such, is entitled to thepossession of her property. It further states that the estate of William S. Poullaia became worthless by the result of the war.
The auditor to whom the cause was referred found against the complainants, and to his report the complainants filed the following exceptions:
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...this was not a conversion by the attorney, and he was not liable to make the loss good. Rogers v. Hopkins, 70 Ga. 454. In Poullain v. Poullain, 79 Ga. 11, 4 S.E. 81 (c), it said that "a donatio inter vivos, as distinguished from a donatio mortis causa, does not require actual delivery, and ......
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Kennedy v. Emerald Coal And Coke Co.
... ... ) 231 ... S.W. 639; Bosek v. Detroit United Railway , ... 175 Mich. 8, 140 N.W. 978; Brennan v. Goodfellow, ... supra ; Poullain v. Poullain , 79 Ga ... 11, 4 S.E. 81; Bowling v. Floyd , 5 Kan ... App. 879, 48 P. 875; Morrison v. Carey , 129 ... Ind. 277; 28 N.E ... ...
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