Opinion
31570.
DECIDED MAY 29, 1947.
Appeal; from Fulton Superior Court — Judge Moore. February 25, 1947.
O. M. Fuller, Mitchell Mitchell, for plaintiff.
Grover Middlebrooks, W. S. Northcutt, for defendants.
1. An attorney who represents all of the parties may testify to communications, statements and admissions made to and in the presence of each other, and in his presence, by several persons who are the sole heirs of an estate, which statements show a family settlement of the estate as agreed upon by all of the parties, to be effectuated by administration on the estate for the sole purpose of putting legal title to the property of the estate into one of the heirs.
2. It being admitted that if the testimony of the attorney was admissible there was evidence to support the directed verdict, it is not necessary to consider other assignments of error or the general grounds of the motion for new trial.
3. The court did not err in admitting the testimony of the attorney and in directing the verdict for the respondents, and it was not error to overrule the motion for new trial.
DECIDED MAY 29, 1947.
William C. Walker, the surviving husband and sole heir at law of Elizabeth Mason Walker, deceased, filed a petition in the court of ordinary for an accounting of the estate of Mrs. Fannie C. Mason, the mother of the petitioner's deceased wife. He alleged in substance: that Mrs. Fannie C. Mason had died leaving as her sole heirs at law her husband, V. C. Mason, and two daughters, Elizabeth Mason (petitioner's wife) and Frances Mason; that the two daughters were appointed joint administratrices of the estate of their mother, and the father, V. C. Mason, was the surety on their bond; that said daughters made application for leave to sell certain lands of their mother in the administration of her estate, which leave was granted by the ordinary; that the lands were sold and bid in by V. C. Mason, but that there were no reports filed with the ordinary, or returns made to the ordinary showing what price was received for said property, or how the sum was distributed, and that no inventory or appraisement had been filed, and no annual returns made to the ordinary; that petitioner had qualified as administrator of the estate of his deceased wife and he brought the petition for accounting as her sole heir at law and as such administrator. The petitioner prayed for an accounting by Frances Mason of her actings and doings as the surviving administratrix of Mrs. Fannie C. Mason, and that an accounting be made with him for the distributive share in said estate due to his deceased wife.
Frances Mason as administratrix and V. C. Mason, as the surety on her bond, filed a response in the court of ordinary alleging substantially that one parcel of property in the estate of Mrs. Fannie C. Mason at the time of her death was sold for $382.99, which sum was never paid into the hands of the administratrices or either of them, but was delivered to V. C. Mason who was in fact the owner of said property and entitled to said purchase money. The respondents averred further that the administration of said estate was merely a means and method adopted by the father and daughters as the only interested parties to perfect the title of the father in and to the properties which stood in the name of his wife at the time of her death; that no money was ever paid by V. C. Mason to said administratrices, or either of them, and no money ever became due and payable by V. C. Mason by reason of the conveyance to him of the property of the estate of Mrs. Fannie C. Mason. The respondents also alleged that a complete return showing all facts necessary as to the true condition of said estate, as provided by the Code, § 113-1409, had been filed by Frances Mason as the sole surviving administratrix; that for the reasons stated therein no money was received at any time by the administratrices or either of them for any of the property of said estate, and there was never any money or funds to be distributed, and that nothing was due petitioner on account of any distributive share of Elizabeth Mason as an heir at law of her mother's estate or otherwise, in connection with the administration proceedings arranged by the family and executed for the purpose shown in the return made to the ordinary.
The case made by the petition and the response in the court of ordinary was appealed by consent to Fulton Superior Court. Upon a trial in that court a verdict was directed by the court for the respondents finding that no accounting was due to the petitioner, individually or as administrator of the estate of his deceased wife, and approving the final return of Frances Mason as the sole surviving administratrix of the estate of Mrs. Fannie C. Mason which had been filed in the court of ordinary. The petitioner made a motion for new trial on the general grounds and on two special grounds. This motion was denied, and the exception here is to that judgment.
1. The court did not err in admitting the evidence of W. S. Northcutt, the attorney who represented V. C. Mason, Elizabeth Mason and Frances Mason in handling the administration of the estate of Mrs. Fannie C. Mason, as complained of in the first special ground of the motion for new trial. Mr. Northcutt was permitted by the court to testify to the arrangement by the three parties, the father and his two daughters, for the administration of the mother's estate so as to put the legal title into the father without the payment of any money, the parties having admitted and agreed in the presence of each other, and in the presence of their said attorney, that the equitable title to the property was already in the father at the time of the mother's death; and that the plan agreed upon amounted to a family settlement in which all of the heirs at law participated, and to which they all consented and agreed. The evidence was objected to as a confidential communication between the attorney and his client, and as statements of a deceased person (Elizabeth Mason Walker) in derogation of her title. The grounds of the last objection seem to have been abandoned by counsel for the plaintiff in error as they do not argue them and apparently they rely altogether on the first objection.
It seems to us that this case is controlled by the ruling in Stone v. Minter, 111 Ga. 45 ( 36 S.E. 321, 50 L.R.A. 356), and the decisions cited therein, and the later cases of Whiddon v. Hall, 155 Ga. 570 ( 118 S.E. 347), and Fowler v. Sheridan, 157 Ga. 271 ( 121 S.E. 308). The first headnote in Stone v. Minter reads: "When a client makes to his attorney a communication or statement in the presence of the opposite party as to the transaction in hand, it is not confidential or privileged, and the attorney is a competent witness to testify respecting the same on the trial of a case arising out of such transaction between the administrator of the client and the other party." Although one of the Justices was absent and did not concur in the ruling quoted, it has been followed in at least two subsequent decisions by full benches of the Supreme Court. In Whiddon v. Hall, supra, it was held that: "1. Where a person acts as agent or attorney for both parties in a transaction, he is a competent witness, under the Civil Code (1910), § 5858, par. 5, to testify touching such transaction in favor of the surviving party against the other party, or the agent of the latter, who was represented in such transaction by such agent, although both of the latter were dead when such agent or attorney testified. 2. Under said section, the agent or attorney is incompetent to testify against the deceased or insane party in favor of the surviving or sane party, as to transactions or communications had with the latter, only when such agent or attorney represented the surviving or sane party alone." In Fowler v. Sheridan, supra, it was said: "Communications made by a client to an attorney for the purpose of being imparted by him to others do not fall within the inhibitions of the law that render an attorney as a witness incompetent to testify to statements or disclosures made to him by his client." The case of Whiddon v. Hall, supra, is quoted and apparently approved in Christopher v. Mooty, 158 Ga. 315(4) (123 S.E. 19).
Counsel for the plaintiff in error take the position that this case is controlled by the ruling in Taylor v. Taylor, 179 Ga. 691 ( 177 S.E. 582). We are not sure that case conflicts with the authorities cited and quoted above. It does not appear from the recital of facts therein that the witness (Miss Curry), whose testimony was objected to, testified to statements or communications between an attorney and his client, and, if so, whether or not the opposite party to the transaction involved was present at the time. The decision simply recites that the witness was introduced "and testified in effect that this conveyance [a bill of sale] was a sham, and that its sole object had been to put apparent title in the grantee in order to hide out the property from an expected claim for alimony." Since the facts in the Taylor case are not sufficiently clear to show that they are substantially on all fours with the facts in the case at bar, we can not hold that the decision therein is controlling in this case. Furthermore, if there is a conflict between the holding in the Taylor case and the rulings cited above, which we think sustain the conclusion we have reached as to the admissibility of the evidence of the attorney in this case, the older cases would prevail. As already stated, although Stone v. Minter, supra, was not decided by a full bench, it was reaffirmed and its ruling followed in later unanimous decisions of the Supreme Court which are older than Taylor v. Taylor, supra. It may be pointed out also that the Taylor case did not undertake to overrule Stone v. Minter, but did distinguish the two cases on their facts, and there must have been a substantial difference in the facts.
2. Whether or not the court erred in admitting the testimony of Frances Mason, as complained of in the second special ground of the motion, becomes immaterial under admissions of counsel for the plaintiff in error. They concede in their briefs that "If that testimony (referring to the testimony of Mr. Northcutt) be admitted, there would be sufficient evidence on which to base a directed verdict. If it be excluded there would not be sufficient evidence on which such directed verdict could be based." This admission removes the necessity of considering the objections to the testimony of Frances Mason and also the general grounds of the motion for new trial.
The court did not err in admitting the testimony of Mr. Northcutt and in directing the verdict for the respondents, and there was no error in overruling the motion for new trial.
Judgment affirmed. Sutton, C. J., and Felton, J., concur.