Cooper v. Reeves , 161 Ga. 232 ( 1925 )

Gilbert, J.

The administrator of Beeves filed a petition based upon Civil Code (1910), § 4597, praying for direction of the court in the distribution of the estate. The court rendered a judgment finding that some of the contestants were entitled to inherit' as heirs of the intestate, and against the contentions of other contestants, among whom was the plaintiff in error. The judgment was one properly falling within the provisions of the aforementioned code section, and did not include the final settlement of the administrator, nor judgment in favor of any of the contestants for stated sums, but left the distribution for further action of the court. The defendants in error in this court moved to dismiss the writ of error; on the ground that no final judgment had been rendered in the case which could be brought to this court for review by direct bill of exceptions.

The motion to dismiss the writ of error is denied. A decree may be partly final and partly interlocutory; final as to its determination of all issues of law and fact, and interlocutory as to its mode of execution. A final decree disposing of all of the substantial equities of the case, such as the conflicting claims to an estate, is not made interlocutory by the mere fact that final settlement with the rightful heirs has not been decreed. Moody v. Muscogee Mfg. Co., 134 Ga. 721 (68 S. E. 604, 20 Ann. Cas. 301); Capital City Tobacco Co. v. Anderson, 138 Ga. 667 (75 S. E. 1040); Massachusetts Bonding & Insurance Co. v. Realty Trust Co., 139 Ga. 180 (77 S. E. 86).

On the trial one of the claimants to the estate (plaintiff in error in this court) offered evidence of a parol contract fully executed, under which she was entitled to the entire estate in question. At the time said testimony was given, all the other inter-pleaders in said cause objected to the same upon the .ground that said witness was incompetent to give the same, because James Peeves was dead and said testimony was as to transactions or communications with him. B. J. Fowler, administrator as aforesaid, did not object to said testimony and did not move to rule out the same. Pending the argument on the objection above stated, Mr. Erwin Sibley, one of counsel for Charlie Reeves, one of the inter-pleaders in said case, said: “We object as attorneys for the administrator, who refuses to object.” The court thereupon said, “He does not object.” Said Sibley was not of counsel for said administrator, and was not authorized by him to make said statement. Said administrator and Mr. H. S. Strozier, one of his counsel, were present in court at that time and throughout the trial. The court admitted said testimony over said objection. Afterwards on November 14, 1924, the court ruled out the same upon the ground above stated. To said ruling interpleader Mary Cooper then and there excepted, for the following reasons: “1. Because said case was not of such character that interpleader Mary Cooper was incompetent to testify to transactions or communications with James Peeves, although he was dead at the time of the trial, B. J. Fowler, administrator as aforesaid, not objecting thereto. 2. Because at the time of said trial Mary Cooper was not a party to said case opposite to any personal representative of James Reeves, deceased. 3. Because said case was not one instituted or defended by a personal representative of James Reeves, deceased, within the meaning of the statute relating to the competency of witnesses. 4. Because said testimony was material, and the ruling out of the same was harmful to Mary Cooper, in that the same tended, by itself and in connection with other evidence introduced as aforesaid, to support the claims alleged by her in her interpleading as amended, to wit, that said Reeves had given her all the property which passed into the custody of said Fowler as administrator as aforesaid; that by contract between her and said Reeves, fully performed on her part, all of said property became hers; and that certain property enumerated in her said interpleading and in said testimony was not the property of James Reeves at the time of his death, but was her property.”

The court erred in repelling this testimony. The proceeding was not a suit instituted or defended by the personal representative of the deceased person, in the sense in which the word “suit” is used in the Civil Code, § 5858, par. 1. The administrator in this proceeding wras not undertaking to recover a judgment for any debt or obligation due the estate, and the administrator was not interested in the result of the proceedings; his only interest being that of a mere stakeholder, and his position being analogous to that of a third party entitled to maintain an equitable petition for inter-pleader. Bland v. Beasley, 138 Ga. 712 (76 S. E. 50); Jasper County Bank v. Rainey, 144 Ga. 542 (2) (87 S. E. 661); Neal v. Neal, 153 Ga. 44 (2) (111 S. E. 387). Such evidence was not inadmissible for any reason assigned by counsel for defendant in error, nor for any other reason of which we are aware. Moreover, if the suit could be construed as one instituted or defended by the personal representative of the deceased, such personal representative did not object to the evidence being admitted.

The court also directed a verdict in favor of the claims of other contestants, after . having directed a verdict against the claims of Mary Cooper. The error in excluding the testimony mentioned in the next preceding division was controlling in the case, and rendered all subsequent actions erroneous, since the rights of Mary Cooper necessarily entered into and affected the rulings in favor of other contestants. It is therefore ordered that the judgment overruling the motion for a new trial be reversed, and the case be remanded to the trial court for further action consistent with the foregoing rulings.

Judgment reversed.

All the Justices concur.