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SHADBURN v. TAPP.
18238.
Specific performance. Before Judge Pratt. Gwinnett Superior Court. March 24, 1953.
HEAD, Justice.
1. It was not error to exclude evidence tending to show a consideration for the alleged contract other than that set forth in the petition.
2. The defendant was the "personal representative" of the deceased, and the petitioner as the "opposite party" was incompetent to testify as to transactions or communications with the deceased, under the Code, 38-1603 (1).
3. The testimony of the petitioner on cross-examination, which was admitted over objections of counsel for the petitioner, was relevant to the pleadings in the case, and it was not error to admit this testimony.
4. The introduction in evidence of certain checks issued to the petitioner by the defendant, subsequently to the death of the deceased, was not error.
5. Evidence as to salaries paid to employees of a funeral home in another community during specified years was relevant on the issue as to whether or not the petitioner had been amply compensated for services rendered to the deceased.
6. The defendant was competent to testify in regard to transactions between the petitioner and the deceased.
7. Evidence that the defendant had invested her individual property in the business of her deceased husband, and had assisted him in its operation, was germane to the allegations of her answer.
8. It was not erroneous for the trial judge to state to the jury the contentions of the defendant.
9. The evidence authorized the verdict, and the trial judge did not err in overruling the general grounds of the motion for new trial.
J. Richard Shadburn filed a petition in Gwinnett Superior Court on May 19, 1952, against Mrs. Louise Tapp. The petition alleged: Glyndon P. Tapp died intestate on December 16, 1950, leaving the defendant, his wife, as his sole heir at law. On January 31, 1951, the defendant filed her application with the ordinary for appointment, and she was duly appointed, as temporary administratrix of the estate of her deceased husband. On May 2, 1951, she filed a petition in the ordinary's office alleging that no administration was necessary on the estate, and on June 4, 1951, the ordinary entered an order that no administration was necessary. Pursuant to such order the defendant has taken possession of all the assets of the estate. The petitioner is a nephew of the deceased, and while the petitioner was still in high school he worked in the undertaking business of the deceased, known as the Glyndon P. Tapp Funeral Home. During this time he worked for the deceased chiefly without compensation, the only compensation he received being such small amounts of money as the defendant [deceased?] gave him from time to time. During such time the deceased continuously and persistently urged him to continue to work for him, and urged that, when he had graduated from high school, he go to a school to learn the undertaking and embalming business, so that he could enter the business of the deceased and assist him in its operation, and eventually operate the business. In order to induce the petitioner to continue to work in the business while he was still in high school, and then, after his graduation, to induce him to go to college and learn the undertaking and embalming business, and then to return and enter his business, the deceased promised the petitioner on many occasions that he would leave the business to the petitioner by will, and that upon the death of the deceased the business would belong to the petitioner in fee simple. When the deceased first made these promises, he said he would leave the business to the defendant [petitioner?] and two other relatives, young boys who worked in the business also, and he actually made a will making such disposition of his property, but later the other two young men left the business, and it was then that the deceased made the importunities to the petitioner to remain with him, go to school to learn the business, and upon the death of the deceased, the Glyndon Tapp Funeral Home, and its entire properties, would be left to the petitioner, because of his faithful and industrious work and effort in building up and maintaining the business at a high standard. Relying upon the promises of the deceased, the petitioner went to school to learn the undertaking business, at considerable expense to his parent and himself, and graduated from a recognized embalming school of high standard. He then returned and worked long and diligently in the business of the deceased. During all of this time, and until his death, the deceased continued to make the promise to the petitioner that, upon the death of the deceased, the funeral-home property would become the petitioner's by will, but death intervened before the will was made. The petitioner has an equitable title in the property. A description of the real estate on which the funeral home is located, and the personal property comprising the assets of the business, is attached as an
exhibit. The prayers were for temporary injunction to restrain the defendant from changing the status of the property, for a decree establishing the petitioner's title to the property, and for other relief.
By a subsequent amendment the petitioner alleged that the fair market value of the real estate described in his petition is from $20,000 to $25,000, and the fair market value of the personal property described is from $10,000 to $15,000. He detailed the services which he had performed. He alleged that he had performed these services for twelve years, and that they were reasonably "worth $5,000 per year. By further amendments he alleged that both the real and personal property of the funeral home are necessary in the operation of the business. He gave certain months in designated years when the alleged promises by the deceased were made to the petitioner. He listed his expenses in attending the embalming school. Later he amended his petition to set up another count, in which he sought damages in the sum of $25,000, in the event specific performance could not be enforced. By another amendment he alleged that, since his original petition had been filed, the defendant has sought to discharge him from working in the funeral home. He asserted that he has been chiefly in charge of the business for the past six years, and has been in exclusive charge since the death of the deceased. He prayed that the defendant be restrained from discharging him.
The defendant in her answer denied that her deceased husband had ever made a contract to will his business to the petitioner. She asserted: That the petitioner never worked for her husband without fair and adequate compensation being paid him. Her husband was interested in the petitioner obtaining an education, and assisted him financially in attending the school where he learned the embalming profession. The petitioner worked at all times either under the supervision of the deceased or the defendant, and on several occasions became disconnected from the business voluntarily, and just prior to the death of the deceased, the petitioner remained away from the business from approximately July to November. She and the deceased were married in December, 1939, and prior to her marriage she had been county welfare director. At the time she married, her husband's business was not in good financial condition, and she worked diligently with her husband to establish and improve the business. By their joint efforts they acquired a building to house their undertaking business. She invested her own money and property in the business of the deceased. Since his death, she has used her personal funds to improve the funeral-home property.
By amendment to her answer she alleged: By lapse of time and his conduct the petitioner has waived his right to enforce any alleged contract between himself and the deceased. It has beck more than eighteen months since the death of the deceased. During this time the petitioner has continued to work for the defendant, accepting a salary from her for such services, without in any manner seeking to assert any right to the property and business sued for, and recognizing the defendant as the owner of the business and property. The petitioner filed no claim or protest when the defendant obtained an order from the ordinary declaring that no administration on the estate of the deceased was necessary. For all of these reasons, the petitioner is now estopped from asserting the claim he has made.
There was testimony on the trial to the effect that, when the petitioner was still in high school, he and two other nephews of the deceased worked in the undertaking establishment of the deceased, and that the deceased at that time promised that he would will his undertaking business to the three boys. There was evidence by an attorney that the deceased had executed such a will. Later, the other two nephews lost interest in the business, and only the petitioner continued to assist his uncle, the deceased.
Several witnesses testified for the petitioner in regard to the alleged contract. His mother, Mrs. W. O. Shadburn, related numerous conversations with the deceased. An excerpt from her testimony, which is as forceful as any testimony for the petitioner in regard to the alleged contract, is as follows: "I heard conversations between Mr. Tapp and Richard as to what he would do. He said, now Richard, . . . I want you to take an interest in this business and help to build it up and he said I'll pay your expenses, he was talking about his every day expenses, his living expenses. He said I'll pay you living expenses, and Richard went ahead and did that and he said I'll will you the funeral home. He said it was the buildings, the rolling equipment, the accounts, and everything that constituted the funeral business. I heard him say those very same words on several occasions, 1943, 1942. He said this up until the time he died. He said now I'm going to will you the funeral business and what he thought, what he called the funeral business included everything that carried on the funeral business. He said it did. Glyndon said that a part of Richard's duties was to build up the business. He kept telling him he said now if you'll take an interest in the business and help build it up, he said, I'll will it to you and Richard did take an interest, he did help build it up."
Miss Maud Gwinn Tapp, a sister of the deceased, and aunt of the petitioner, testified in part as follows: "I had conversations with Glyndon and Richard; what Glyndon told me about Richard working there, well, after I started making my home with my sister he came down there one day and Richard had not graduated from high school then . . . and he said . . . now if Richard will go ahead and graduate from high school and will apply himself and take an interest in the business, says, I'll send him to embalming school and says when he gets through there the business will be willed to him at his death, Richard was to take an interest and work with him until his death, Glyndon's death, and if Richard did that Glyndon was going to will the funeral business to him, I have heard Glyndon make that statement on several occasions."
There was testimony by other witnesses to the effect that they had heard the deceased say that he had willed the funeral, business to the petitioner, or that he had promised to will it to him. There was considerable evidence that the petitioner had worked faithfully for the deceased in his funeral business, except for short periods of time when he had left the business of the deceased and worked elsewhere. It appeared that the expenses of the petitioner in attending an embalming school were shared by the deceased and other relatives of the petitioner.
There was testimony for the defendant that, during the entire time that the petitioner had worked for the Tapp Funeral Home, he had been paid a salary, which was in accord with salaries paid by funeral homes in ocher Georgia communities. One witness testified that, a short time before the death of the deceased, the deceased talked with the witness about making a will, and indicated that he intended to make a will and leave all of his property to his wife. There was testimony by a number of salesmen who had sold supplies and equipment to the Tapp Funeral Home that they dealt either with the deceased or his wife in selling such supplies and equipment prior to the death of the deceased, and since his death, they have transacted their business with the defendant. The defendant testified as to a considerable expenditure of money by her in improving the funeral-home property since the death of her husband, and during the approximately eighteen months between his death and the filing of the action by the petitioner.
The jury returned a verdict for the defendant. The petitioner filed a motion for new trial, which was later amended. The exception is to the denial of the motion for new trial as amended.
1. In the first four grounds of the amended motion for new trial, and in ground 13, it is asserted that the court erred in excluding oral and documentary evidence offered for the purpose of showing that, at the time Glyndon P. Tapp went into business, he used funds obtained from his father's estate, which belonged to all of his father's heirs, to obtain necessary equipment, and that his brothers and sisters assisted him financially in his business. Counsel insist that this evidence would illustrate the reasonableness of the alleged intention of the deceased to make a will leaving the funeral business to his nephew, the petitioner.
2. Ground 5 assigns error on the exclusion of certain testimony of the petitioner, objected to on the ground that it related to transactions and communications between the petitioner and the deceased, which were inadmissible under the Code, 38-1603 (1). It is contended in this ground that the testimony was admissible because the action was not one defended by the "personal representative of a deceased person."
In Johnson v. Champion, 88 Ga. 527 (15 S. E. 15), it was held: "A widow whose husband died intestate after the passage of the act of December 12th, 1882 (Acts of 1882-3, p. 47) [now Code, 113-903 (1)], leaving no lineal descendants, is, in the absence of evidence that he left debts which are still unpaid, entitled to his whole estate without taking out letters of administration thereon. And being so entitled, she is his 'personal representative,' and in a suit against her by one claiming to be a creditor of her husband, the plaintiff is not a competent witness to establish an alleged contract between himself and the deceased out of which the alleged indebtedness arose." See also Neely v. Carter, 96 Ga. 197, 204 (23 S. E. 313); Willis v. Bonner, 136 Ga. 720 (71 S. E. 1048); Tidwell v. Garrick, 149 Ga. 290 (99 S. E. 872); Hardeman v. Ellis, 162 Ga. 664, 667 (27), 704 (135 S. E. 195); Phillips v. Phillips, 163 Ga. 899, 900 (7) (137 S. E. 561).
In the present case, the petitioner alleged that the defendant was the sole heir at law of the deceased, who died intestate, and that she had obtained an order from the ordinary of the county that no administration was necessary on his estate. Under section 4 of the act of 1945 (Ga. L. 1945, p. 169; Code, Ann. Supp., 113-1235), this order of the ordinary can not be issued until h e has determined that the estate owes no debts. Under the allegations of the petition, the defendant was clearly the "personal representative" of the deceased, and the petitioner was incompetent to testify as to transactions or communications by him with the deceased.
It is further contended in this ground that, even if certain parts of the testimony were properly excluded, other parts were admissible, and that the court erred in excluding the admissible testimony. The ground is very lengthy and contains numerous questions of counsel and answers of the witness, with objections of opposing counsel and rulings of the court. At least a part of the testimony which it is contended was erroneously excluded appears in the record.
"Where a lengthy extract from the testimony of a witness is set forth in the ground of a motion for new trial and it is claimed by movant that the evidence was admissible, and it appears that a part of it gas inadmissible, the ruling of the court excluding the testimony as a whole will not be reversed." Skipper v. Alexander, 172 Ga. 246, 247 (157 S. E. 273); Chambers v. Wesley, 113 Ga. 343 (2) (385. E. 848).
The court did net err in overruling this ground of the amended motion for new trial.
3. In ground 6, it is contended that the court erred in permitting the petitioner to give certain testimony on cross-examination, over the objection of counsel for the petitioner that it was irrelevant and immaterial and would constitute a transaction between the witness and the deceased. This testimony was in regard to his working in the funeral home after the death of Mr. Tapp, receiving stated amounts of money, operating the business, and having the business on notice from Mrs. Tapp, the defendant.
The testimony of this witness was relevant under the pleadings, and it was not erroneous to allow the testimony to be submitted to the jury.
4. In grounds 7 and 8, it is asserted that the court erred in admitting in evidence certain checks for various amounts, issued by the Tapp Funeral Home or Mrs. Louise Tapp subsequently to the death of Glyndon P. Tapp, and endorsed by the petitioner.
This documentary evidence illustrated the contention of the defendant that, after the death of the deceased, the petitioner was working for a salary, and not as the equitable owner of the funeral home, and the court did not err in allowing this evidence.
5. Ground 9 complains that the court erred in allowing the witness, Mrs. Ward, who operated a funeral home in Gainesville, Georgia, to testify that in 1941, 1942, and 1943 she paid an apprentice in her undertaking establishment from $10 to $15 a week. The objection to this testimony was that it was irrelevant, immaterial, and did not illustrate any issue in the case. It is contended that this testimony could not illustrate the value of any services rendered by the petitioner because it was not shown that the services were rendered in the same town, or in the same undertaking establishment, or under similar circumstances, and that the evidence showed that the petitioner was an experienced undertaker and embalmer, whereas this testimony related to the salary of an apprentice.
The petitioner testified that he finished high school in 1942, and attended a school of mortuary science in 1943. It would therefore appeal that, during the years 1941, 1942, and 1943, he was not a licensed embalmer. The testimony was relevant on the issue as to whether the petitioner had been amply compensated for the services he had rendered the Tapp Funeral Home, and the court did not err in admitting it.
6. Ground 10 contends that the court erred in allowing certain testimony of the defendant, Mrs. Tapp, over the objection that it illustrated a definite transaction between the petitioner and the deceased. The rule here sought to be invoked has no application to the testimony of this witness, she being in no sense the opposite party to her intestate within the meaning of the Code, 38-1603 (1). See Lane v. Howard, 201 Ga. 616 (2) (40 S. E. 2d, 53 7).
7. Grounds 11 and 12 assign as error the admission of testimony of the defendant (in ground 11) that she had invested her individual money and property in the business of the deceased, and (in ground 12) that she had answered ambulance calls, giving a specific instance. This testimony was objected to on the grounds that it was irrelevant and immaterial, and that the evidence set out in ground 12 was highly prejudicial.
The record does not show that any demurrers were filed in this case either to the petition or the answer. The evidence objected to in these grounds was germane under the answer of the defendant, and was properly admitted.
8. In ground 14, it is asserted that the court committed error in charging the jury in regard to the contention of the defendant that the petitioner was estopped from asserting his claim.
The trial judge in his charge gave a rather complete statement of the pleadings, and the excerpt complained of in this ground is a part of his statement of the contentions of the defendant. The trial judge correctly stated the contentions of the defendant in her amended answer, to which there was no demurrer, and no error is shown in this ground. See Jones v. Hogans, 197 Ga. 404, 412 (29 S. E. 2d, 568), and cases cited.
In ground 15, it is asserted that, since the court charged the jury on the contention of the defendant in regard to estoppel, the judge should have charged that the burden was on the defendant to sustain her plea of estoppel by a preponderance of the evidence. Except for the statement in regard to the contentions of the defendant, the court gave no charge to the jury on the principles of law governing estoppel. It could not be harmful to the petitioner that the judge did not charge on the burden of proof when estoppel is relied upon as a defense, since he did not instruct the jury that they might find for the defendant if the evidence showed an estoppel.
9. "A parol contract for land of which specific performance is sought should be made out so clearly, strongly, and satisfactorily as to leave no reasonable doubt as to the agreement." Gordon v. Spellman, 148 Ga. 394 (2) (96 S. E. 1006); Lloyd v. Redford, 148 Ga. 575 (97 S. E. 523); Scott v. Williams, 167 Ga. 386, 388 (145 S. E. 651); Suber v. Black, 168 Ga. 439, 441 (148 S. E. 81). Under the rule stated, the evidence in the present case, even if sufficient to sustain a verdict for the petitioner, would not demand a finding in his favor. Therefore, it was not error to overrule the general grounds of the motion for new trial.
Judgment affirmed. All the Justices concur, except Atkinson, P. J., not participating.
E. W. White and Allison & Pittard, contra.
W. L. Nix, for plaintiff in error.
ARGUED JUNE 8, 1953 -- DECIDED JULY 14, 1953.
Saturday May 23 04:24 EDT


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