Russell v. Ware

Duckworth, Chief Justice. 1. It is never error to allow evidence to be introduced over objections that it is irrelevant and prejudicial, where as here, the evidence was in proof of allegations of the pleadings which had not been demurred to. Beasley v. Burt, 201 Ga. 144 (39 SE2d 51), Adler v. Adler, [388] 207 Ga. 394 (61 SE2d 824), and cases cited in these cases. Nor was it error to charge the jury to consider such evidence and that they would be authorized to make a finding based thereon. Western & Atlantic Railroad v. Fowler, 77 Ga. App. 206 (47 SE2d 874); Martin v. Nichols, 127 Ga. 705 (56 SE 995); Savannah Guano Co. v. Christian, 159 Ga. 600 (3) (126 SE 376). As to any proper remedy in such a situation see Fleming v. Roberts, 114 Ga. 634 (40 SE 792). Submitted September 15, 1964 Decided November 5, 1964. Jack G. Tarpley, for plaintiff in error. William Butt, Herman Spence, contra. 2. While the customs and practices so alleged and proved might not be enough to thwart the law which requires that all assets of a deceased are a part of his estate, and if intestate, the administrator is entitled to receive and distribute them in accord with law, yet in the situation of this case, such a law would not authorize a reversal because of the allowance of the evidence as to customs and practices and the charge thereon. See Code §§ 110-702, 110-704; Evans v. Mills, 119 Ga. 448 (1) (46 SE 674); Jones v. Harris, 151 Ga. 129 (3) (106 SE 555); Deck v. Shields, 195 Ga. 697 (25 SE2d 514). 3. The evidence amply supported the verdict, and the general grounds of the motion are without merit. Judgment affirmed. All the Justices concur.