Cox v. Weems

Bleckley, Justice. 1. The motion for a new trial is too loose in respect to the evidence of Mrs. Weems. There were several conversations, and the answers of the witness extend to .five direct and four cross-interrogatories. We cannot locate the motion on this or that part of the testimony. The obnoxious answers ought to have been pointed out by number or by quotation, or in some other way so as to leave no uncertainty as to the subject-matter and range of the objection. 2. The motion for a new trial is a part of the pleidings. 17 Ga., 141; 55 Ib., 464 ; 57 Ib., 151. It does not belong to the bill of exceptions and has no business to appear in it. What is properly record is to be evidenced by the transcript duly certified, and as the clerk sets forth the motion in the transcript so it wdll be taken in the supreme court, and a different version given of it in the bill of exceptions will be disregarded. 44 Ga., 620; 56 Ib., 439 ; 59 Ib., 840; 57 Ib., 154. In this case if we take the transcript we are assured that the court refused to charge the jury that the marital rights would attach, and though what purports to be a copy of the motion for a new trial embodied in the bill of exceptions represents the matter differently, we treat the charge as refused, and so treating it, there was no error on that point. 3. We think the will free from ambiguity, and that its construction was alone for the court. The trust attached upon the so-called lease of the land, as well as upon the personalty. The purpose and intention were to furnish [170] Mrs. Cox personally with a home, and that being so, she took a separate estate in the home, unaffected by the marital rights of Cox, her husband. Inasmuch as the trustee, and he alone, was interested in the remainder, he could cer" tainly waive the condition of her occupying the land. It is clear, too, that if such a waiver was made by him and acted on by her, it would prevent non-occupation from working a termination of her estate at any time during her life. The case ought to be tried over on the views of the law which we have announced. The facts are for the jury ; and on them we express no opinion. Judgment reversed.