Donald v. Groves , 1925 Ga. LEXIS 105 ( 1925 )

Hines, J.

1. Where any’ suit is instituted or defended by a person insane at the time of trial, or by an indorsee, assignee, transferee, or by the personal representative of a deceased person, the opposite party shall not be admitted to testify in his own favor against the insane or deceased person, as to transactions or communications with such insane or deceased person. Civil Code (1910), § 5S58, par. 1.

(а) In Hendrick v. Daniel, 119 Ga. 358 (46 S. E. 438), and in Hendricks v. Allen, 128 Ga. 181 (57 S. E. 224), this court held that the grantee in a deed from a deceased person was, within the meaning of this statute, an assignee or transferee of such deceased person. In Turner v. Woodward, 136 Ga. 275 (71 S. E. 418), it was held that a donee in a deed of gift was an assignee or transferee in the meaning of this law. In Kramer v. Spradlin, 148 Ga. 805 (98 S. E. 487), a legatee or devisee was held by this court to be an assignee or transferee in the sense in which those words are used in the above section of the Code.

(б) But an heir at law, suing as such to have partitioned between him and another heir at law property inherited from his ancestor, is neither the personal representative nor the assignee nor the transferee of his ancestor, and the opposite party to such partition proceeding, who is also an heir at law of plaintiff’s ancestor, is not incompetent to testify as to communications and transactions with the deceased ancestor which affect the right of plaintiff to recover and diminish the quantum of interest in said property to which the suing heir would be entitled. Boynton v. Reese, 112 Ga. 354 (3) (37 S. E. 437); Stewart v. Ellis, 130 Ga. 685 (61 S. E. 597); Rudulph v. Washington, 146 Ga. 605 (91 S. E. 560); Hall v. Butler, 148 Ga. 812 (98 S. E. 549); Cooper v. Johnson, 151 Ga. 608 (107 S. E. 849); Fleemam v. Gay, 152 Ga. 189 (108 S. E. 781).

No. 4647. March 12, 1925.

(c) In a proceeding brought by an heir at law of one tenant in common against the cotenant, there is no law requiring the testimony of the latter to be corroborated. Generally, the testimony of one witness is sufficient to establish a fact, even though such witness may be testifying to transactions or communications with a deceased person; and the present ease does not fall within any of the exceptions to the general rule. Civil Code (1910), § 5742.

2. The other assignments of error in the bill of exceptions not being referred to or insisted upon in the brief of counsel for the plaintiff in error, the same are treated as abandoned.

3. Applying the above principles, the trial judge erred in overruling the defendant’s exception to the finding of the auditor that the defendant was incompetent to testify to facts occurring prior to the death of his wife, which would defeat or diminish her interest in this property and affect the extent of plaintiff’s right to recover, upon the -ground that his mouth was closed by the death of his wife as to such facts.

Judgment reversed.

All the Justices concur. James E. Warren, for plaintiff in error. T. J. Ripley and W. M. Bailey, contra.