Opinion
17237, 17238.
OCTOBER 11, 1950.
Injunction, etc. Before Judge Paschall. Bartow Superior Court. June 30, 1950.
Ingram Tull, for plaintiff in error.
J. L. Davis, contra.
1. In an equitable suit by an administratrix to compel the defendant to surrender possession of documents alleged to have been delivered to him by the intestate for safekeeping, the court erred in permitting testimony that the intestate stated shortly before his death that they had been left with the defendant for safekeeping, and erred in instructing the jury that the evidence was admitted for the purpose stated.
2. The court did not err in refusing the defendant's motion for a directed verdict.
3. As a new trial is granted, no ruling is made on the sufficiency of the evidence.
4. The court did not err, as complained of in the cross-bill of exceptions, in excluding evidence of the petitioner.
Nos. 17237, 17238. OCTOBER 11, 1950.
Mrs. Ethel T. Paris, as administratrix of the estate of her deceased husband. U. E. Paris, filed in Bartow Superior Court. against Ray Paris, an equitable petition seeking injunctive relief, and to compel the delivery of described notes, security deeds, and leases, which were alleged to have been delivered to the defendant, a son of the intestate, not as a gift, but for safekeeping only, at a time just before the death of the intestate. The prayers, besides for process and rule nisi, were: that the defendant be enjoined from collecting any funds due on the evidences of indebtedness, and from disposing of any of the documents; that the petitioner recover the documents in her representative capacity, so that the funds could be collected and administered; and that the petitioner be granted general equitable relief. The petition was not demurred to. In his answer the defendant denied that the documents had been delivered to him for safekeeping only, and averred that they had been given to him by his father as an absolute gift.
The defendant, who was called for cross-examination, testified in part: "I am next to the oldest child of my father, U. E. Paris, who died December 21, 1948. . . At the time my father died I had in my possession . . [one of the contracts in question]. He turned them over to me about the middle of November. No, he did not endorse any of them to me. He did not sign his name. No, he did not take them to a lawyer and give them to me and have them transferred. As to how I contend, then, that he gave them to me — he gave them to me and said when any of them came due I could collect. No, he never said anything about endorsements. He never said anything about transferring or signing them. . . He just told me he wanted to give them to me and handed them over. . . I knew he was going [to the hospital] for a serious operation."
Dupont McPhail testified for the petitioner: "I heard Mr. Paris make some statements in December just before he died, . . with reference to notes turned over to Ray Paris. . . He said he left papers with his son, Ray Paris, on account of so much confusion at home; so many children around. I said, `Did you endorse the papers to Ray?' and he said, `I did not. It was not my intention. I gave them to him purely for safekeeping.'"
Mrs. Dupont McPhail testified for the petitioner: "As to whether I had a conversation with Mr. Paris the last time we visited him, . . we had two conversations with him on Sunday before the operation on Monday. . . Mr. Paris made a statement as to why he turned the notes over to Ray Paris. He said he had been sick for about a year, and that he went to the hospital as an emergency and he had turned the notes over to Ray because the house was open; it was never locked. He said he gave them to Ray because he was afraid the house might catch on fire."
Hugh Cowan testified for the defendant: "Mr. Paris was in his yard; he lived next door. . . He came over and sat down in Ray's living room. He pulled an envelope out of his bosom and gave it to Ray. . . He said, `Ray, here are some papers I want you to have. When they come due you can collect them.'"
Mrs. Ray Paris testified for the defendant that one afternoon in November, 1948, she was in the kitchen and heard Mr. Paris say: "Ray, I have some papers here and I want to give them to you." She did not hear the entire conversation or see Mr. Paris hand the papers to his son.
At the conclusion of the testimony, the court overruled a motion by counsel for the defendant for a directed verdict. The jury returned a verdict in favor of the petitioner. The defendant's motion for new trial was overruled, and he excepted.
The petitioner filed a cross-bill of exceptions, assigning error on the exclusion of evidence in her own behalf to the effect that her husband stated to her shortly before taking the papers to his son, that he was delivering them for safekeeping and not as a gift.
1. Special grounds 1, 2, and 4 of the amended motion for new trial complain that the court erred in permitting Mr. and Mrs. McPhail to testify regarding statements made by the father that the papers were delivered to the defendant for safekeeping, and not as an outright gift to him, and in charging that the evidence was admitted for a limited purpose.
"The delivery of personal property by a parent into the exclusive possession of a child living separate from the parent shall create a presumption of a gift to the child. This presumption may be rebutted by evidence of an actual contract of lending, or by circumstances from which such a contract may be inferred." Code, § 48-105.
"Declarations of the donor made after the time of the alleged gift, and while the donee was in possession, are not admissible to disprove the gift, although other declarations admitting the gift are in evidence for the donee." Porter v. Allen, 54 Ga. 623 (6); Blalock v. Miland, 87 Ga. 573 (5) ( 13 S.E. 551); Ogden v. Dodge County, 97 Ga. 461, 464 ( 25 S.E. 321); Deal v. Moseley, 147 Ga. 523 (2) ( 94 S.E. 1013); Higgins v. Trentham, 186 Ga. 264 (1) ( 197 S.E. 862); Miller v. Everett, 192 Ga. 26 (4) ( 14 S.E.2d 449); Gullatt v. Thompson, 57 Ga. App. 669 (3) ( 196 S.E. 107). Counsel for the defendant insist that the evidence objected to constituted self-serving declarations by the deceased, and was hearsay and prejudicial.
The testimony objected to was admitted for the purpose of throwing light on the circumstances surrounding the delivery of the papers. Under the above authorities the evidence was not admissible for any purpose, and the court erred in admitting the testimony objected to, and in instructing the jury that it was admitted for a limited purpose.
2. Special ground 3 complains that the court erred in refusing to direct a verdict for the defendant. The evidence showing that there was an issue of fact as to whether the intestate intended to make a gift, the court did not err in such refusal.
3. As a new trial will be granted, no ruling is made on the sufficiency of the evidence to support the verdict.
4. The court did not err, as complained of in the cross-bill of exceptions, in excluding evidence of the petitioner to the effect that her husband stated to her shortly before taking the papers to his son, that he was delivering them for safekeeping and not as a gift.
Judgment reversed on the main bill of exceptions; cross-bill of exceptions affirmed. All the Justices concur.