Smith v. Smith
| Decision Date | 29 November 1900 |
| Parties | SMITH et al. v. SMITH. |
| Court | Georgia Supreme Court |
SECONDARY EVIDENCE—WIDOWS ALLOWANCE —RETURN—PARENT AND CHILD—APPEAL. 1. Evidence showing merely that a paper purporting to be a deed was signed by the alleged maker thereof, with no proof of delivery, is not sufficient to authorize the introduction of secondary evidence of the contents of the instrument.
2. A widow's right to a year's support out of the estate of her deceased husband is not lost because for some time previous to his death they lived in a state of separation.
3. A request to charge which negatived the right of a father to appropriate to himself the earnings of his minor children, who had not been manumitted by him, was properly refused.
4. When there is no motion for a new trial, an erroneous or inapt charge to the jury, which did not necessarily control their verdict against the plaintiff in error, will not be treated by this court as affording cause for reversing the judgment of the court below.
5. Mere inaccuracy of description in one or more particulars, with respect to land mentioned in a return made by commissioners appointed to set apart a year's support, will not vitiate such return, if, from other descriptive terms therein employed, the identity of the premises actually intended to be set apart can, with reasonable certainty, be ascertained.
(Syllabus by the Court.)
Error from superior court, Muscogee county; W. B. Butt, Judge.
Action by Saphronia Smith against Solomon Smith and others. Judgment for plaintiff. Defendants appeal. Affirmed.
Blandford & Grimes, for plaintiffs in error.
Brannon, Hatcher & Martin, for defendant in error.
LUMPKIN, P. J. 1. When this case was here at the October term, 1898, we ruled that, "to justify the admission of secondary evidence as to the contents of a lost deed, it must be shown not only that such a deed once existed, but also that it was properly executed." See 106 Ga. 303, 31 S. E. 762. At the trial now under review, the defendants undertook to meet this requirement by introducing a witness who testified he had seen the instrument the execution of which they sought to prove, and that he "was present when it was signed." He did not, however, undertake to go further, and state that it was signed by the alleged grantors in the presence of the persons whose names were signed to the instrument as attesting witnesses, or that there had ever been any delivery thereof. Indeed, the testimony of this witness was not materially different on the last trial from his testimony on a previous hearing, which is reported on page 305 of the volume above cited (106 Ga., and page 763, 31 S. E.), and which we held was insufficient to show that the instrument relied on had been "properly executed" as a deed. It follows, of course, that the trial judge did not err in excluding testimony as to the contents of this document, or in ruling out all evidence with reference thereto, and instructing the jury not to consider the same.
2. Complaint is made that the court erred in charging the jury as follows: "The fact that this widow [the plaintiff] may not have been living with him [her husband] for some time previous to his death would make no difference if she had not been divorced or he had not been divorced from her; she wouldbe entitled to all the rights of a wife." This instruction was in perfect accord with the decision of this court in Farris v. Battle, 80 Ga. 187, 7 S. E. 262, which is controlling upon the question now raised.
3. The court was requested to charge that "if the jury should believe from the evidence that the defendants the children of William Smith, deceased, furnished the money to their father to buy the land" in controversy, "and he bought the land, whether he took a deed to himself or not, or whether he took a deed to his children, the same being lost, then, if his children went into possession of said land, a resulting trust occurred, and the possession...
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