Smaha v. George

• Decision Date: 11 February 1943
• Docket Number: 14401.
• Parties: SMAHA v. GEORGE et al.
• Court: Georgia Supreme Court

24 S.E.2d 385

195 Ga. 412

SMAHA v. GEORGE et al.

No. 14401.

Supreme Court of Georgia

February 11, 1943

Syllabus by the Court.

1. An instrument in the form of a deed, reciting a valuable consideration, witnessed as a deed, delivered to one of the grantees, and recorded in the grantor's lifetime, is not a will so as to require attestation as such, merely because in expressly reserving a life-estate to the grantor, the instrument may in that connection use the somewhat inappropriate words that the 'conveyance is to the inoperative until the death of the grantor.' Accordingly the fact that several months later the maker executed a will revoking 'all other wills heretofore made,' and attempting to dispose of some of the property in a manner different from the deed, could not operate to change the character or effect of the previous instrument. Under the foregoing ruling, the judge did not err in granting a nonsuit against the executor of the will subsequently made, on the second count of his suit against the grantees in the deed seeking to cancel the previous instrument as a will. Nor did the judge err in granting a nonsuit on the additional grounds embodied in that count, one as to the lack of revenue stamps when the instrument was executed, and other grounds, dealt with in the opinion, which were unsupported by any evidence for the executor.

2. On the first count, seeking to cancel the deed on the ground of forgery, the evidence authorized the verdict in favor of the defendant grantees.

3. It is not reversible error for a judge, in the absence of a request, to fail to charge to the jury the rule of impeachment, codified in § 38-1806, which provides that the testimony of a witness, who shall 'swear wilfully and knowingly falsely' as to a material matter, shall be 'disregarded entirely, unless corroborated by circumstances or other unimpeached evidence,' where witnesses, though admitting an inaccuracy in their previous depositions with respect to the incidental question whether or not the back or wrapper on the deed in question was attached at the time the instrument was executed, denied any intentional falsity, and sought to explain the discrepancy as due to a failure to refresh their recollection on a matter which was not impressed on their minds, or due to the confusion caused by the circumstances of cross-examination in their previous depositions; and where the nature and character of the testimony is not such as would render the purpose to falsify plainly manifest. Accordingly, the exception to the failure of the judge to give in charge the particular rule on impeachment, embodied in § 38-1806, with respect to the testimony of a witness who has knowingly and wilfully sworn falsely as to a material matter, is without merit.

Nor, except as stated, are instructions given on other modes of impeachment vitiated by a mere failure to give, without request, the particular rule referred to.

4. Other exceptions to charges and to a failure to charge, without request, which are dealt with in the opinion, show no ground for reversal.

5. There is no merit in the exception to the admission of testimony by one of the defendant grantees, as to communications with the deceased grantor with regard to the deed in question, on the ground that such testimony was inadmissible, under the Code, § 38-1603(1), in a suit by the personal representative of the deceased. This is true, since, not only was there similar evidence introduced without objection, but the plaintiff executor himself elicited substantially the same testimony by deposition from the same witness.

Bolis George Smaha, as executor of the will of Habib George Smaha, also known as Habib George, filed a petition against several grantees named in an alleged deed executed to them by the decedent in June, 1938, recorded in February, 1941, before the testator's death in June, 1941. The original petition sought to cancel this instrument as an alleged forgery. In count 2, the executor alleged that the instrument was a will, and was void because it was not attested by three witnesses. In an amendment to that count it was alleged, in effect, that, if the instrument was a deed no consideration was paid, that there was no delivery, that it was procured by fraud, and that no revenue stamps were attached by the grantor or by his authority at the time it was executed. A demurrer to the petition as thus amended was overruled. At the trial there was no evidence tending to sustain the allegations of count 2, except as to the original absence of revenue stamps and their being placed on the deed by the grantee to whom, under the defendants' evidence, the deed was delivered by the grantor; and the evidence for the defendants as to other grounds of the amended count 2 was undisputed. As to this count the judge granted a nonsuit, on which judgment the plaintiff executor assigns error.

On the first count, as to the alleged forgery of the deed, the jury found for the defendants; and the executor excepted to the refusal of a new trial on the general grounds and on special grounds as dealt with in the opinion.

Upon the question, as to whether the instrument was genuine or a fabrication, the defendant grantees introduced testimony by one of the grantees and from the two subscribing witnesses appearing on the paper, one of them an attorney who prepared the instrument and attested it as notary. This testimony was, in effect, that the grantor requested the grantee mentioned to have the deed prepared as instructed by the grantor; that it was so prepared; that on the morning of its execution the three persons mentioned took the paper to the home of the grantor; that all of the instrument was then read to the grantor; that he said it was what he wanted; that, although he could not sign his name, he touched a pen for 'his mark,' and delivered the paper to the grantee who had it prepared by the attorney; and that this grantee actually paid the $10 consideration expressed in the deed. As to the grantor's leaving Valdosta for Griffin, Georgia, with his brother, the plaintiff executor, these witnesses testified that the grantor was at his home when the paper was executed, and it was not until later in the day that the brother took the grantor in an ambulance to Griffin, where the brother resided, and where the grantor remained from June 30, 1938, until his death in June, 1941, except during a short visit to Valdosta from September, 1938, until Easter, 1939. The instrument, dated June 30, 1938, bore an entry of record on February 4, 1941. There was also testimony from another of the grantees that, on the afternoon of the date of the deed, the grantee who testified as to delivery to him had the instrument in his possession and showed it to the witness; and testimony from a daughter of a different grantee that she rode in the ambulance with the grantor and the executor brother from Valdosta to Griffin, and that the grantor mentioned on the way his having executed the deed, which the executor denied. There was testimony from the wife of another grantee, who lived in Griffin, that on the day after reaching that city the grantor mentioned to her about his nephews and nieces, the grantees, being 'orphan children,' and his having made a deed to them.

The plaintiff executor testified, that on the day of the alleged execution of the deed he had remained with the decedent the entire time until they left in the ambulance for Griffin that no such instrument was executed on the day it purported to be; and that he never heard of such a paper until after the death of his brother. He testified particularly that he had never left his brother to go alone to the place of business of the ambulance company in Valdosta, and had not remained there from fifteen to thirty minutes, as the two proprietors testified he had done, about the time in the morning when, according to the testimony for the grantees, the deed was executed at the grantor's home. The plaintiff further relied on parts of depositions, containing his cross-examination of the grantee claiming delivery of the deed to him, and of the attorney attesting the deed as a notary public, and claiming to have prepared it by instruction of that grantee. These witnesses admitted in their testimony at the trial, and it was conceded by the defendant grantees, that the wrapper or back on the deed was not on the paper when it was executed, but was placed there by the grantee in possession of the paper and the attorney just before it was recorded in 1941; that the typewriting on the back and on the face of the deed was made by the same machine, with a similar ribbon, and appeared similar; and that, as conceded by the defendants, the printed form used as a back for the deed had not been printed by the printing company until February, 1940. The plaintiff therefore contended, that, if the alleged deed was executed while the back was thereon, the instrument was a forgery, because the alleged grantor was not in Valdosta, where it purported to be executed, at any time from February, 1940, until his death about a year later. In support of this contention, the plaintiff relied especially on his cross-examination in the previous depositions of one of the grantees and the attorney attesting the paper as notary, with testimony to the effect that the back was on the deed at the time of its execution; and that nothing had been changed in connection with the instrument. At the subsequent trial, both witnesses testified that the back was not on the deed at the time of execution, but was placed there early in 1941 just before it was recorded, in order to have a form or place for an entry of record. The plaintiff executor endeavored to show contradictory testimony in the depositions and at the trial...