Simmons v. Brannen
| Decision Date | 14 April 1923 |
| Docket Number | 3390. |
| Citation | 117 S.E. 318,155 Ga. 494 |
| Parties | SIMMONS v. BRANNEN ET AL. |
| Court | Georgia Supreme Court |
Syllabus bye the Court.
Under the issues made in this case by the pleadings, the burden of proof was upon the plaintiff in error, and he should have been allowed to open and conclude before the jury.
Where a father entered into a contract for the sale of a certain tract of land to his daughter, taking her notes for the purchase price and executing to her a bond for title, and subsequently executed a will bequeathing to his daughter certain sums of money as a legacy, and after the execution of the will made a deed conveying the land in question to his daughter without the payment of the notes, which he destroyed, the conveyance thus made was a voluntary one, a gift to the daughter, and, if intended to be an advancement it was such. Whether it was intended purely as a gift, or an advancement, was a question of fact under the evidence in the case.
In so far as the part of the charge contained in the fifth ground of the motion for new trial violates the principles stated in the preceding headnote and the corresponding division of the opinion, it was also error.
In view of the fact that under the decision announced above a new trial is granted, it is unnecessary to pass upon the exceptions made to the competency of jurors.
Error from Superior Court, Bulloch County; H. B. Strange, Judge.
Suit by J. S. Brannen, executor, against W. M. Simmons and others. Judgment adverse to the defendant named, and he brings error. Reversed.
R. Lee Moore and Deal & Renfroe, all of Statesboro, for plaintiff in error.
Fred T Lanier and Brannen & Booth, all of Statesboro, for defendants in error.
Joseph S. Brannen, as executor of the will of C. C. Simmons, filed his equitable petition, praying for a decree directing him as to his duties as executor in paying out the funds belonging to the estate then in his hands. The issues in this case arise upon the question made as to whether or not certain legacies of $1,500 to each of testator's three daughters Mrs. Jones, Mrs. Smith, and Mrs. Brannen, had been adeemed. The three daughters were made parties to the suit, as were also two sons who had received certain advancements. One of these sons, W. M. Simmons, insisted that these legacies of $1,500 to each of the daughters had been adeemed, while the three daughters referred to joined issue with this contention and maintained that the legacies had not been adeemed. The respective contentions of W. M. Simmons and the three daughters of C. C. Simmons were set up in their answers to the petition, wherein it was prayed that the parties at interest should be required to interplead and set up their contentions as to the construction of the will. The other legatees were not interested in the question, there being no contest by any of them as to the legacies left to them. The jury impaneled to try the case returned a special verdict in answer to the question propounded, whether the legacies of $1,500 to the daughters had been adeemed, giving a negative answer. W. M. Simmons made a motion for new trial, which was overruled, and he excepted. The original motion contained the usual general grounds.
The first question raised in the amendment to the motion is as to whether the court erred in refusing to give the opening and concluding argument to counsel for the movant. We are of the opinion that the issues made in the case and the position necessarily taken by the plaintiff in error relative to those issues entitled him to the opening and conclusion, for the burden of proof upon those issues rested on him. The Code declares that the burden of proof generally lies upon the party asserting or affirming a fact, and to the...
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