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hihit" in its legal sense, implies some legislative enactment forbidding something. “The laws of England, from the early Plantagenets, sternly prohibited the conversion of malt into alcohol.” “Prohibition,” in the United States, specifically means “the forbidding by legislative enactment of the manufacture and sale of alcoholic liquors for use as leverage." Giving, therefore, to the word "prohibited" its ordinary signification and its technical meaning, as applied to the particular subject-matter of the sale of spirituous liquors, it must involve some positive act done by authority. If the position of the Solicitor General is correct, there is no necessity for any general prohibition law in Georgia, and the general local option law was an entirely useless piece of legislation. All that is necessary to secure prohibition in a county is to elect county officials who will arbitrarily and at all times refuse to grant licenses. This would put it in the power of One or more county officials to give or refuse prohibition to the people. This great question in which all the people are so much interested would not be under the control of positive statute, but of the caprice or honesty of a few individuals. If such were the law, a county might be “wet” one day and "dry" the next. If the people of Bartow county want the traffic of spirituous liquors prohibited in their county, they must avail themselves of the provisions of the general local option law of the state. The Supreme Court has repeatedly held that no special local law will give the protection, and surely the failure to grant licenses by the commissinners will not furnish such protection, for, at any time, the commissioners could change their minds and issue licenses. We conclude that the sale of spirituous, malt, or intoxicating liquors was not prohibited by law, prohibited by high license, or prohibited otherwise, in Bartow county, when the plaintiffs in error were charged with a violation of section 428 of the Penal Code of 1895, as amended by the act of 1897, and that the demurrer to the indictment on this ground should have been sustained. Let the judgment of the Superior court, refusing to grant a new trial, be reversed, the verdict in both cases set aside, and the indictment quashed. The petition of the Solicitor General to review the decision of the Supreme Court in the case of Griffin v. Eaves, 114 Ga. 65, 39 S. E. 913, is refused. The principle Upon which that case was decided was apProved by the Supreme Court in several cas* before and since the decision of that case. As late as the case of Glover v. State, 126 Ga. 607, 55 S. E. 592, it was cited and approved. In the case of Edwards v. State, 123 Ga. 544, 51 S. E. 630, the Supreme Court tites with approval the principle of the PapWorth Case, and all subsequent cases involving the same question. In view of these re*ated rulings of the Supreme Court, this out is not of the opinion that the question
is one of so much doubt that it should be referred to the Supreme Court for review. Judgment reversed.
CUNNINGHAM v. STATE. (No. 167.) (Court of Appeals of Georgia. April 25, 1907.)
CRIMINAL LAW — REVIEW – DISPOSITION OF CAUSE.
The constitutionality of the act of December 20, 1898 (Acts 1808, p. 60), amending section 341 of the Penal Code of 1895, by inserting therein, after the word “any,” and before the word “pistol,” the words “kind of metal knucks," being the only question involved in this case, and the question having been certified to the Supreme Court, and that court having held adversely to the contention of the plaintiff in error, and that said act is not unconstitutional, an affirmance of the judgment of the trial court, in overruling the demurrer based upon the contention that said amendatory act was unconstitutional, must result.
(Syllabus by the Court.) Error from City Court of Bainbridge; Harrell, Judge. Will Cunningham was convicted of a misdemeanor, and brings error. Affirmed. For opinion of Supreme Court on certified questions, see 57 S. E. 90.
W. D. Sheffield, for plaintiff in error. RUSSELL, J. Judgment affirmed.
KIMBROUGH v. SMITH.
(Supreme Court of Georgia. July 12, 1907.) WILLS.–CONSTRUCTION-DEVISE OF LIFE ES
A devise of a life estate, made in distinct
terms in a prior item, will not be enlarged into a fee-simple estate by the general language of a subsequent item, where the language and the general context of the will, do not clearly and plainly indicate such to be the testator's purpose and intent.
[Ed. Note.—For cases in point, see Cent. Dig, vol. 49, Wills, $ 1431.] g
(Syllabus by the Court.)
Error from Superior Court, Troup County; R. W. Freeman, Judge.
Action by S. A. Smith, administrator, against H. C. Kimbrough. Judgment for plaintiff. Defendant brings error. Affirmed.
S. A. Smith, as administrator de bonis non cum testamento annex0 of John A. Smith, filed his complaint for land against Kimbrough, administrator of Thomas Wesley Smith, and the case was submitted to the judge without a jury under an agreed statement of facts. In accordance with the terms of this agreement he subsequently rendered his decision, which was in favor of the plaintiff, and the defendant filed the present bill of exceptions complaining of that decision. The agreed statement of facts shows that John A. Smith died in 1880, testate, and that his sons, S. P. and Thomas Wesley, who were named as executors in the will, duly qualified and administered the estate, and were discharged in 1883. The third item of the will is as follows: “I give and bequeath to my beloved wife, Mary Smith, and to my son Thomas Wesley Smith, jointly, the following lots and fractions of lots of land [being the land sued for in the present case]. The lands with their appurtenances, herein mentioned, are to be held, and the rents or profits thereof enjoyed, jointly by them. If one dies before the other, the survivor shall have the share of the one who dies, and at the death of both said property shall revert to my estate, to be equally divided among my heirs at law, at that time in life; and, as the mills situated on the lands thus disposed of require repairs, I give my wife and son Thos. Wesley five hundred dollars for the purpose of making such repairs.” The fourth, sixth, and seventh items of the will make bequests to his other children of lands therein specified; the estate in each instance being without any limitation. Item 5 gives certain land to his sister for life, with remainder to a named daughter. Item 8 Sets out that “in making the above and foregoing bequests it is distinctly to be understood that in every instance the property so bequeathed is to go to the legatees mentioned and their lawful heirs, and in no instance to be subject to the debts of said legatees, and the same ruling to apply to the bequests that are to be made in the items that follow, and I value the lands thus bequeathed as follows, to wit: Those to my wife and Thos. Wesley jointly, $6,000; to Nannie White, $3,500; to Sarah E. Cleveland, $3,942 [these two being daughters]; and to Samuel P. Smith, at $3.S05.” Item 9 provides that “all the balance of my property, of each and every description, whenever and whereever it may be or consist of, I desire and direct that the same may be divided and distributed among my heirs at law hereinbefore mentioned in the foregoing items, so that the distribution may be equal, taking as a basis upon which to estimate the values I have placed on the realty bequeathed, counting my wife and Thos. Wesley as two shares; and it is to be distinctly understood that the bequest to my wife is in lieu of dower.” The residue of the estate immediately after the death of the testator was appraised at $35,000. These legacies were assented to, and the legatees took possession of the lands bequeathed to them. Thomas Wesley was born in 1832, and from his childhood had lived with his father and mother, never having married, and was so living at the time the will was made, and at testator's death. The other children had married and with their families were living apart from the testator. Thomas Wesley continued to live with his mother, unmarried, till her death in 1884, but later, in 1894, married. He continued to live upon the land devised to himself and mother after her death, and till his death, which occurred on June 13, 1904. He left surviving him a
wife and one child, who continued to live on the place after his death, and this suit is brought by the administrator de bonis non of his father's estate, against the administrator of Thomas Wesley Smith, to recover this land.
F. M. Longley, for plaintiff in error. J. R. Terrell, for defendant in error.
EVANS, J. The solution of the case presented by this record depends upon the character of the estate, whether fee simple or for life only, which Thomas Wesley Smith took in the lands devised in the third item of his father's will. If no other considerations entered into the construction of this item beyond defining the plain and unambiguous language of the testator according to its obvious legal effect, no difficulty would be experienced in declaring the nature of the es: tate therein created. With almost technical precision the testator devised to his wife and son Thomas Wesley an estate for their joint lives, with survivorship, and after the death of the survivor a reversion of the land devised to his estate, to be distributed among his heirs at law living at the time of the death of the survivor. But the plaintiff in error insists that the eighth item of the will is irreconcilable with item 3, and that the life estate created in the third item became absolute under the eighth item, and vested in Thomas Wesley Smith an absolute fee-simple estate upon the death of his mother. Civ. Code 1895, $ 3346, provides that, “where there are inconsistent provisions in the same will, the latter must prevail.” Before a posterior provision shall be given the effect of nullifying a devise previously made in the will, the conflict between the two provisions must be irreconcilable. A subsequent provision which diminishes a precedent gift, as by cutting down to a life estate a prior devise, is not so far conflicting and irreconcilable with that gift as to be in a legal sense repugnant thereto. Broach v. Kitchens, 23 Ga. 515; Sheftall v. Roberts, 30 Ga. 453; Vaughn v. Howard, 75 Ga. 285. In these cases the language of the posterior clause reducing the estate was in express terms, and not in general language. When the words of the will in the first instance distinctly indicate an intent to make a clear gift, such gift is not to be cut down by any subsequent provision which is inferential, and which is not equally as distinct as the former. 30 Am. & Eng. Enc. L. (2d Ed.) 687; 1 Jarman on Wills, *438. The reason underlying this principle is equally applicable to the converse of the proposition, to wit, that, where the prior devise of an estate less than a fee is made in distinct terms, it will not be enlarged into a fee by the general language of a subsequent item, unless the language and general context clearly and unmistakably discloses such to be the testator's purpose and intent. It is familiar law that the whole will is to be taken together, and operation to be given to every part of it, if possible, and no part should ever be rejected because of conflict with another part, except where the repugnancy is 80 palpable that both items can not be given effect. The language relied On in this case to create the repugnancy is the statement in the eighth item that the property bequeathed in the previous items "is to go to the legatees mentioned and their lawful heirs, and in no instance to be subject to the debts of said legatees.” It is quite evident that the testator was of the
Opinion, from the language he used, that he
(Ould devise property to his children, and at the same time exempt it from liability to their debts, The eighth item does not remotely suggest the testator's intent to modify or annul the provisions as to survivorship between his wife and Thomas Wesley, and there (old be n0 survivorship except that a life estate was created. We would be doing violence to the clear and distinct purpose manifested by the testator in the disposition of the land devised in the third item to hold that the clear and distinct gift of a life estate was to be converted into a fee simple *tate by the general language employed in the eighth item of his will. Plaintiff in error further contends that the testator discloses an intention, in the eighth and ninth items of his will, to make an equal distribution among his heirs at law; that the real purpose of the testator was to divide his estate into five equal parts, giving two to his wife and Thomas Wesley, and to the three other children each an equal share. We gather from the whole will that the testamentary scheme did not comprehend *uality in the estates devised. A construetion which would enlarge the estate granted to Thomas Wesley in the third item into a to simple would destroy that equality for which the plaintiff in error so earnestly contends, since Thomas Wesley, if he should *ive his mother, would be given a much or share than would pass to the other thildren under the terms of the will. It would seem that the testator had more in tlind equality in present interest than equal" of the estate devised to his several chilten. In his estimate of the land devised to to different legatees he values the land Without reference to the estate created there. h and for the purpose of making an equal "sion of the residuum on the basis of such "ation. The will itself is demonstrative to this was the general testamentary scheme, and presents no ambiguity. But, so It we were of the opinion that the will *d an ambiguity, the attendant circum*nces of the testator and his family, ap*ring in the agreed statement of facts, il"tales that the construction we place up
on it is the correct one. The precise date of the will does not appear in the record, but it was probated in 1880. At that time Thomas Wesley was 48 years of age, living with his mother, and unmarried. The other children were married and living apart from the testator at the time of his death. It is easy to infer from these circumstances that the testator did not believe that his son Thomas Wesley would ever marry, and he desired the land specifically devised to go to his lineal heirs upon the death of the survivor named in the third item of his will. The residuuin of the estate was appraised at $35.000, approximately double the value of the land Specifically devised. The record is silent as to whether this residuum consisted of perSonalty or realty. Both his wife and Thornas Wesley took their shares of this residuum without limitation. While we are of the opinion that the will is unambiguous, we adVert to these attendant circumstances of the testator and his family, which were before the trial judge, only to show that the construction which we have given is consonant with those circumstances at the time the will was executed. The case was tried by the judge without a jury, by consent, upon an agreed statement of facts, and we agree in the judgment of the trial judge that Thomas Wesley Smith's estate in the lands devised in the third item of the will determined upon his death.
Judgment affirmed. All the Justices conCur.
GEORGIA RAILROAD & BANKING CO. v. HEARD.
(Supreme Court of Georgia. July 10, 1907.)
1. APPEAL-REVIEw—OBJECTIONs WAIVEp. Only the general grounds of the motion for new trial, were referred to or argued in the brief of the plaintiff in error. The special as: signments of error which were not referred to in the brief will be treated as abandoned.
[Ed. Note.--For cases in point, see Cent. Di vol. 3, Appeal and Error, s! 4256, 4262.] 18. 2. SAME-Ev1DENCE.
The evidence was sufficient to uphold the verdict.
(Syllabus by the Court.)
Error from Superior Court, Greene County; H. G. Lewis, Judge.
Action by Columbus Heard against the Georgia Railroad & Banking Company, Judgment for plaintiff, and defendant brings error. A flirmed.
Jos. B. & Bryan Cumming and Jas. B. & Noel P. Park, for plaintiff in error. Miles W. Lewis, for defendant in error.
EVANS, J. Judgment affirmed. All the Justices concur.
HUMPHREYS v. SMITH. (Supreme Court of Georgia. June 15, 1907.)
1. WRIT OF ERROR-RECORD–PROCEEDINGS ON MoTION FOR NEW TRIAL. The record contained an original motion for new trial, based upon the general grounds only, and also two amendments to the motion for new trial, containing various special grounds. It does not appear that an order was taken at or before the hearing approving the special grounds, but it does appear that a number of the special grounds are set forth in detail in the bill of exceptions, which contain an averment that “the recitals of fact contained in the motion for new trial are true and correct.” Held, that such of the grounds as are set forth in the bill of exceptions are sufficiently verified to be considered by this court. Starling v. Thorne, 13 S. E. 552, 87 Ga. 513.
2. T R I A L – INSTRUCTIONs — SUBMISSION OF MATTER NOT WITH IN ISSUES. The case involves simply the question as to whether the claimant was entitled to the specific performance of an alleged parol agreement for the sale of land between himself and the plaintiff's intestate; the plaintiff being an administrator who was seeking to sell the land in dispute. The pleadings and evidence were not of such character as to raise an issue of fraud. The instructions of the judge with reference to fraud, being wholly foreign to the issue, were calculated to mislead the jury, and a new trial should have been granted on account of the error committed in giving such instructions. [Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, §§ 587–589, 591.]
1. BILLS AND NOTES-ACTION ON NOTE–EVIDENCE–SUFFICIENCY.
The verdict was without evidence to support it, and the court erred in overruling a motion for new trial based upon the general grounds. 2. DEPOSITIONS – INTERROGATORIES — AGREE
MENT OF COUNSEL–COMPLIANCE.
Where counsel for both parties agreed, in regard to the execution and return of certain interrogatories, that “any disinterested party may act as sole commissioner in the execution and return of the above interrogatories, but the answers must be written by the witness personally,” compliance with this stipulation was sufficiently shown when it was made to appear that the witness to whom the interrogatories were to be propounded dictated his answer to another person who wrote them out on a typewriter, and that the answers were read over to the witness, who then, having previously been duly sworn, signed the same.
3. BILLS AND NOTEs—VALIDITY-CoNSIDERATION.—SETTLEMENT OF SUIT. ... Where a, note is given in settlement of a suit pending in court against the maker of the note, said party is bound thereby; and this is true whether the suit itself was instituted upon a just and valid claim or not. |Ed. Note.—For cases in point, see Cent. Dig. vol. 7, Bills and Notes, § 203.) 4. SAME-ACTION on NoTE—Evidence—SUF. FICIENCY. No error appears to have been committed by the trial judge, except as indicated in the first headnote.
(Syllabus by the Court.)
Error from Superior Court, Cobb County; Geo. F. Gober, Judge.
Action by L. G. Zenovitch against N. A. Glenn. Judgment for plaintiff, and defendant brings error. Reversed.
Zenovitch brought suit against Mrs. Glenn on a promissory note, dated October 21, 1902, for the principal sum of $300. The defend. ant filed a plea and several amendments, in which she alleged that said note had been obtained by fraud of plaintiff, and, “if signed by her, is totally without consideration.” She further alleged, and set up in her testimony, that plaintiff is indebted to her upon two promissory notes, dated February 20, 1903, and February 21, 1903, for the principal sum of $259 and $150, respectively; and she prayed judgment on said notes against the plaintiff. The plaintiff testified that he had had dealings with the defendant prior to October 21, 1902, and that she had become indebted to him up to that time in the sum of $1,673 on a note and $200 for money loaned; that he commenced legal proceedings upon said indebtedness against her, and on October 21, 1902, they agreed upon a settlement whereby she paid him $500 in cash and gave her note for $300, which note is the subject of this suit. The only portion of plaintiff's testimony which can be construed as a denial of the notes set up by the defendant in her cross-petition is the following: “The only cash I received besides the $500 was the sum of $15 paid by her, for which I gave a note for $15. * * * I have never received since October 21, 1902, any money or other thing of value from Mrs. Glenn in settlement of this note [the note here sued on] or for any other purpose—that is, in satisfaction of any existing debt, as a gift or as a loan—except the $15 hereinbefore mentioned, that she paid me in Tacoma in 1903.” The evidence upon the other material issues was conflicting. The jury returned a verdict in favor of the plaintiff for the sum of $300, with interest. The defendant's motion for new trial was overruled, and she excepted.
F. Roland Alston, for plaintiff in error. Moore & Pomeroy, for defendant in error.
BECK, J. (after stating the foregoing facts). 1. The plaintiff filed no responsive pleading to the counterclaim set up by the defendant in her cross-petition, and we are left to gather from plaintiff's testimony what his defense, if any, was. In this connection the defendant swore: “One day he [plaintiff] asked me for $259, and gave me his note for it. This is Mr. Zenovitch's signature [identising note for $250, dated February 20, 1903].' I saw him sign that paper. * * * This entire note is in his handwriting. * * * At that time I loaned him $2.59. This note sidentifying note, dated February 21, 1903, for $150) is for money that I gave him. That is his signature. The paper is in his handwriting." It is argued in the brief of counsel for plaintiff below, defendant in error here, that "plaintiff had no knowledge of them [the notes set up by the defendant] until the plea was filed-on the day of the trial; and, as his interrogatories had been taken several days before and were then in court, he had no notice of this defense, and consequently did not deny these notes specifically, but his evidence leaves no doubt that said notes were never signed by him.” Under these circumstances, it would have been perfectly competent for the plaintiff to move for a continuance of the case on the ground of surprise, in order to prepare to meet the issue thus raised; but this he failed to do, relying upon his other testimony to rebut the presumption in favor of the notes (the execution of which was nowhere denied) and the direct testimony of the defendant in Support of the same. It is true the plaintiss testified that he had received no “money or Other thing of value” from the defendant, "as a gift or as a loan,” since October 21, 1902; but this entire statement is qualified by the words, “in satisfaction of any existing debt." This averment, therefore, is altoother too loose and general to support a ska of want or failure of consideration of the notes held by the defendant, the alleged onsideration of which was money loaned, not "in satisfaction of any existing debt,” but as an independent transaction whereby plaintiff became indebted to the defendant. It follows from what has been said that the "ordict in favor of the plaintiff, for the full amount of the note sued on by him, was without evidence to support it, and the court err* in overruling defendant's motion for a new trial based on that ground. * The movant complains in one of the stounds of the motion for a new trial that tle Court erred in admitting in evidence the *rrogatories of Zenovitch; the ground of to objection being that “they were not ex*d in accordance with the agreement be"on Counsel as to the manner of execution, "that the answers were not written by the outs and were not in the handwriting of tle witness as provided by said agreement.” * agreement above referred to was as follows: “It is agreed that any disinterest"Party may act as sole commissioner in the *ution and return of the above interroga* But the answers must be written by
the witness personally and certified to by a notary public.” The notary public, who acted as commissioner to execute the interrogatories, certified the same as follows: “This is to certify : That L. G. Zenovitch presented to me, William Thompson, notary public in and for the state of Washington, duly commissioned and sworn, the attached interrogatories together with the exhibits thereto attached, and that, before answering said interrogatories, I propounded an oath to the said L. G. Zenovitch, which oath he took, and said that in his said answers to his said interrogatories he would tell the truth, the whole truth, and nothing but the truth. That the answers to each and every one of said interrogatories were given in my presence, and were dictated to a stenographer upon a typewriter directly, and that the same were carefully read over to him after being written and answered, and are verified by him as being the true and correct answers as [he] dictated them. That he did not write out the answers to the interrogatories in longhand himself, for the reason that he is a slow writer, and it is only with the greatest difficulty that he can write on account of poor health and a stiff wrist. That he signed his name after the same had been carefully read over by him, and that he has taken oath before me that the answers have been correctly transcribed according as he dictated them in person.” And the following affidavit of said Zenovitch is attached to the answers to the interrogatories: “That he either wrote or dictated the foregoing answers to the interrogatories. That he has carefully read the same over and the interrogatories. That he knows the contents of all of said answers, and that the same constitute his answers as dictated by him, and the same are true.” It has been held by this court, and we do not desire to be understood as laying down any rule in conflict therewith, that, “to render the evidence of a witness taken by written interrogatories admissible in the first instance, the statute requires that two commissioners shall act in taking the depositions of the witness; and, if for any reason the parties waive this provision of the statute and agree that such may be taken by one commissioner, it is a compliance with the terms of the agreement which makes the execution legal, and authorizes the admission of the evidence so taken. It follows that, to bring about this result, the terms of the agreement must be strictly observed.” Rooney v. Southern Association, 115 Ga. 400, 41 S. E. 648. In the case just cited the court said: “The terms of the agreement * * * were neither strictly nor substantially observed.” In the case at bar, however, the witness dictated his answers to the interrogatories just as he would have written them. The same were carefully read over to him after being written. He makes oath that they were his