Jackson v. Butts

Gilbert, J. (After stating the foregoing facts.) 1. The motion for new trial contains more than one ground to the effect that the court erred in not stating the contentions of the defendant correctly; that the contentions were stated in a manner calculated to confuse the jury. This is a common-law suit in ejectment. The defendant filed only a plea of not guilty. There is no amplification by way of amendment setting out the conten [314] rtions of the defendant. There were no requests in writing tendered to the court,' setting out the contentions of the defendant. This court, therefore, has no means of determining what were the contentions of the defendant, except by reading the brief of evidence, which is, at best, unsatisfactory for the purpose. It can not be' said in all cases that the evidence introduced by the defendant is a clear index of the defendant’s contentions. It may contain features abandoned or waived. It would be difficult for the trial judge to determine in all eases the exact contentions from the testimony of witnesses, because of the manner in which evidence is generally introduced during a trial of this kind. We can not say that there were such inaccuracies or confusion on the part of the court •in stating the contentions of the defendant as to cause a new trial. 2. The following instrument in writing was admitted over the objection of the defendant, to wit: “In the name of God, Amen: I, S. G. Chandler, being feeble in body but sound in mind and memory, do hereby give and bequeath to my daughter, Anna Medlin, that portion of land upon which she now resides. The lines to be run so as to embrace between 3 and 4 acres, and to run as designated by me and as understood by these present.. In the event she dies without heirs, the land to revert to the, original estate. (His mark) S. G. Chandler.” “I. W. Vinson. A. C. Chandler. T. J'. Croley. E. Chandler. “This July 37th, 1878.” “Recorded under affidavit of T. J. Croley, June 1st, 1881.” The ground of objection was that, if offered as a deed, “the description contained therein was insufficient to pass title,” and if offered as a will, “its execution and probate had not been shown.” If this instrument was construed to be a will, it was error to admit the same in evidence without proof of its probate. If it was construed to be a deed and admitted in evidence as such, this was erroneous, because the description of the land is not sufficiently definite to constitute a valid conveyance. The instrument purports to convey “that portion of land upon which she [Anna Medlin] now resides.” If this were all, the particular tract might, possibly be identified by extrinsic evidence; but the instrument further provides : “The lines tote run so as to embrace between 3 and 4 acres ancf to run as designated by me and -as understood ty these present.” This provision leaves the'quantity of land wholly indefinite. It is to be somewhere between 3 and 4 acres; the lines are to be run [315] thereafter and “as designated by me,” and further, “as understood by these present.” We apprehend that it would be wholly impossible to determine with any. degree of accuracy how the lines are ’to be run, and what those present understood the maker, of the instrument to intend. The instrument does not recite delivery. The record is silent as to any theory upon which delivery was shown or presumed. The instrument does not contain a habendum and tenendum clause, and is entirely wanting in the language usually employed in conveyances by deed. None of the forms usually found in deeds are a part of this instrument. TJpon the contrary, the language, “In the name of God, Amen,” is frequently ■found in wills, and in the brief instrument is found also the expression, “being feeble in body, but sound in mind and memory,” and also “give and bequeath.” All of these expressions are frequently found in testamentary instruments. The court erred in admitting the writing in evidence. This erroneous ruling, however, affects only that part of the suit which seeks to recover an interest in the 4-acre tract of land, and will not require a reversar of the judgment in so far as it affects the interest in the 60-acre tract. The judgment is affirmed in so far as the verdict-and-judgment awarded the plaintiff a one-half undivided interest in the 60-acre tract of land, and is reversed and a new trial granted in »so far as the verdict and judgment awarded to the plaintiff a one-third interest in the four-acre tract of land. 3. Error is assigned on the following instruction <to the jury: “If you are satisfied Mrs. Butts died without heirs and there was no administration on her estate, and Mr. Butts, her husband, was sole heir at law, the court charges you under those circumstances he would be entitled to recover.” The only criticism of the charge is to the effect that the court tells the jury “that they must believe there is no administration on the estate of Mrs. Butts before Mr. Butts can recover,” and that there is no evidence to support the charge. The excerpt quoted is not technically correct as embodying the whole law on the question; furthermore, it was unnecessary to instruct the jury that they must believe there was no administration on the estate of Mrs. Butts unless the estate owed debts. Where the wife dies intestate and childless and-leaves no debts, the husband is entitled to possess and control her estate without administration. Civil Code, §§ 3930, 3931 (1); Powell on Actions for Land, § 114. The law favors directness rather than [316] the doing of an unnecessary thing. It would be a needless circuity of action to require the husband to go into the court of ordinary and have himself appointed administrator in order to recover land owned by his deceased wife, where he is sole heir at law, when the statute authorizes him to possess and control her whole estate under such circumstances without administration. In the cage of McElhaney v. Crawford, 96 Ga. 174 (22 S. E. 895), it was held that the plaintiff in a libel suit which was pending at the time of the defendant’s death might make the wife, who was the sole heir of her husband, a party defendant, and that the suit might proceed against her as the representative of her husband’s estate. -In the case of Johnson v. Champion, 88 Ga. 527 (15 S. E. 15), and a number of other cases, the same principle was recognized in ruling on the admissibility of evidence. This court has uniformly held that the same rule of evidence applied as to the surviving husband or wife where 'he or she was the sole heir as in cases prosecuted or defended by the personal representative of deceased persons, as provided in the Civil Code, § 5858. In Greenfield v. McIntyre, 112 Ga. 691 (38 S. E. 44), it is held, that before heirs of a deceased person can recover real estate of which such person has died seized and possessed, they must allege and prove that-there are no debts and no administration,- or that the administrator has assented to their suit. This rule has been adhered to in other cases. It applies where there are a number of children, or children and representatives of children, or in cases where tjie law has not fixed with certainty who is entitled to be the personal representative of the deceased. The rule in these eases is, however, applicable under a different state of facts from that of husband or wife who is the sole heir of the deceased wife or husband. No attack is made upon the charge complained of, other than that above stated, and counsel fox* plaintiff in error do not refer in their briefs to the subject of debts by way of the ground based on insufficiency of evidence -to support the verdict. The excerpt from the charge quoted does not shoTiir error requiring the grant of a new trial. 4. The ruling stated in the fourth headnote requires no elaboration. Judgment affirmed in part, and reversed in part. All the Jus - tices concur.