Crews v. Crews , 174 Ga. 45 ( 1931 )

Per Curiam.

The first headnote does not require elaboration.

Under the ruling in Hill v. Merritt, 146 Ga. 307 (91 S. E. 204), the testimony which can not be admitted where one of the parties is deceased must concern a “transaction or communication had directly with the deceased, . . of such character that the deceased, if alive, could deny, rebut, or explain the statement of the other party.” It is well settled that where one of the parties to a transaction is dead, the surviving party may testify as to some facts and not as to others," the admissible evidence depending upon whether it falls within the definition'just given. “If the question depends upon the existence of facts which are disputed, the proper practice is for the court, by a preliminary examination, to determine whether these facts exist.” Dowdy v. Watson, 115 Ga. at p. 44 (41 S. E. 266). In the present case the execution of the document sought to be canceled is not disputed. The testimony of the suriviving party who signed the document does not concern the signing, but has reference to a conversation had by him with the scrivener. Moreover, the document purports to be either a will or a deed. While it might, in a sense, be termed a transaction, it is not one in which there was a valuable consideration. On the contrary it was executed for love and affection by one to his wife for life and to his youngest child in remainder. It is stated in Dowdy v. Watson, supra:' “There is no presumption that a witness is incompetent. The question of the competency of a witness does not arise until there is an objection or exception distinctly raising that question. When a witness is objected to on the ground that he is incompetent to testifjr, the question must, as a general rule, be decided by the court.” Whenever there is an objection on the ground that the opposite party is dead, that objection, standing alone, is not sufficient to render the testimony inadmissible. The court must make an examination to ascertain whether the conversation or the testimony as to the transaction was something had with the party then deceased which the latter could deny or explain, as stated above. In this case no explanation appears -in the record. It is not shown that the deceased son was present when the document was executed, nor does it appear that he was present when the conversation was had between the grantor and the scrivener. The contrary appears from the evidence offered. It does not even appear that the deceased son ever knew of the transaction, unless that appears from the fact that the son resided on the place at the time of his death. The document was executed on April 27, 1900. The claim affidavit was filed on August 24, 1929, more than twenty-nine years after the document was executed. The son died in March, 1929, having previously married, but it does not appear when he was born; consequently it is not possible to learn from the record how old the son was at the time the document was executed, and therefore it is not known whether he was old enough' to have understood or taken part in the transaction. Moreover, it is more than likely, if either of the grantees participated in the conversation or negotiation, that it was the wife of the grantor, the life-tenant. In such case it was the duty of the court to ascertain whether the entire transaction or negotiation was had with the wife, or whether without the knowledge of either of the grantees, before excluding the testimony; and unless it appeared'that the deceased son, if alive, could deny, rebut, or explain the statement of the surviving party, the evidence was admissible. No such facts appearing, in our opinion the court erred in refusing to admit the evidence. Moore v. Harlan, 37 Ga. 623; Leaptrot v. Robertson, 37 Ga. 586; Chamblee v. Pirkle, 101 Ga. 790, 792 (29 S. E. 20); Dowdy v. Watson, supra.

The third headnote does not require elaboration.

Judgment reversed.

All the •Justices concur, except Hill and Hines, JJ., who dissent from the ruling in the second division of the decision.