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Brown vs. Oattis.

B. S. WORRILL; GOODE & TONEY; JAMES WIMBERLY ; JAMES T. FLEWELLEN, for defendant.

BLECKLEY, Judge.

1. Two ladies litigated in this case—one as plaintiff in execution, the other as claimant. The lady-claimant lost. Her counsel, five in number, moved in her behalf for a new trial. Four of them, in support of certain grounds of the motion, made affidavit, as did also the claimant, that they did not know, at the time of the trial, that one of the jurors was related by affinity to the plaintiff, or that this juror had used certain expressions indicating prejudice against the claimant's case. One of the counsel did not join in the affidavit, and his silence is wholly unexplained by anything which appears in the record. We think, therefore, it is no strained inference to conclude that he could not depose to the like ignorance with his associates. With such a gap in the showing, we will presume that he had knowledge of the juror's incompetency, and his knowledge, on a matter like this, would affect hi client: See Edmondson vs. Wallace, 20 Georgia Reports, 660.

2. Another ground in the motion for a new trial is, that numerous declarations of the defendant in fi. fa. in favor of his own title, were admitted in evidence, when it did not appear that he was in possession of the premises at the several times of making these declarations. The evidence came in without objection, and there was no motion to rule it out or withdraw it. Nothing in the whole range of the law is better settled than that there must be some ruling by the court over the party's objection, touching the competency of evidence, in order to make the admission of it a good ground for new trial.

3. Still another ground of the motion is, that the court left it to the jury to determine whether certain of these declarations were made whilst the defendant was in possession. It is not so stated, but we infer that this reference of the

Brown vs. Oattis.

question to the jury was made in the court's final charge, and with appropriate instructions as to considering or not considering the declarations, according as the fact might be found that they were or were not made pending the defendant's possession. The record discloses that there was some evidence before the court that the defendant had possession, and, doubtless, upon that evidence, the court, deeming the possession prima facie established, admitted the declarations. There was other evidence which tended strongly to negative the possession, and we think there was no error in the court's leaving such conflict as there was to the jury; more especially, as the claimant had not objected, in any way, to any part of the evidence when it was admitted or afterwards. Speaking for myself, I will say that I consider it a sound practice, even where timely objection is interposed, for the court, on a prima facie case of possession being made, to admit the declarations, and if opposing evidence afterwards come in from the adverse party, to leave the declarations to stand, instructing the jury not to consider them as evidence if, in their opinion, they were not accompanied with possession. It is better that the jury should weigh evidence and settle conflicts than that the judge should do it. Be this as it may, we are all agreed that as the claimant did not object, so as to invoke a direct decision from the court, there was no injury to her of which she has a right to complain.

4. The record of a deed was admitted in evidence, over the claimant's objection. This deed was from a third person to the defendant in fi. fa., and covered the premises levied upon and claimed. The original was proved to be, at the time of trial, beyond the jurisdiction of this state, to-wit : in the state of Alabama, at the house of a person residing there who was not a party to the case on trial. There seems to have been no objection urged to the record except that due diligence had not been used to procure the original deed. It was contended that notice ought to bave been given to the claimant to produce it. But of what use would such a notice have been? Her counsel all testified that they did not bave

Brown vs. Oattis.

possession of it, and there was no evidence whatever that it was in her possession, power or control. On the contrary, the proof was positive and uncontradicted that it was at the house of a stranger to the suit, William Oattis, in the state of Alabama. Whether, when a paper is known to be without the jurisdiction of the court, secondary evidence may not, for that reason, be admitted, was treated as a doubtful question in the case of Vaughn vs. Biggers, 6 Georgia Reports, 188. It was presented as a qucere and left undecided. In 26 Georgia Reports, 537, it was decided in the affirmative. The Code clares, in section 3767, that in order to admit secondary evidence, it must appear that the primary evidence, for some sufficient cause, is not accessible to the diligence of the party. We think no rule of diligence can reasonably require a party to go out of the realm in search of original documents, which are not under his own control or that of his adversary, especially where the secondary evidence which he offers is of so high a nature as an official record of the absent paper. The case in the 26 Georgia Reports rules that even verbal evidence of the contents is admissible. We do not see how the question can, at this day, be regarded as open in our courts.

5. We rule that none of the grounds in the motion for new trial were sufficient, except those which attack the verdict as contrary to evidence; and as to these we make no ruling, except that there was no abuse of discretion in granting the new trial. There was certainly strong evidence against the verdict. The constitution trusts the superior court with power to grant new trials, and we are not disposed to confine the discretion within any narrow limits. In passing from the old system of appeals, to which our people and bar were so long accustomed, to the new system of one final trial, the transition period is much softened by a liberal practice in granting new trials. While litigation should not be unnecessarily protracted, there is great wisdom in having at least one trial that is satisfactory both to the jury and the presiding judge. We will be slow to force the judge to grant a new trial against

New et al. vs. Potts.

his will, on the mere weight of evidence, and still more slow to deny to his conscience and discretion the repose of a second trial where he solemnly orders it.

Let the judgment be affirmed.,

MARGARET New et al., plaintiffs in error, vs. SAMUEL POTTS,

executor, defendant in error.

1. A power of appointment annexed to an estate for life, is not abridged or

withdrawn by a subsequent direction in the same will that, in case the tenant for life, who is the donee of the power, shall marry, she and her husband shall give bond and security for the forthcoming and delivery of the property, at the termination of the life estate, “to be disposed of as before mentioned," there being no disposition before mentioned, other than that

which the terant for life was authorized to make by exercising the power. 2. Neither the marriage of the tenant for life, nor failure to give the bond

and security after marriage, cut down or curtail the power; more especially, as there was, in fact, no loss by waste or removal of the property dur

ing the coverture. 3. Disposition by last will is a disposition at death, no matter how long be

fore death the will may have been executed. It need not be executed in

articulo mortis, nor in the last sickness, 4. A power of disposition in the testator's widow, wholly unlimited as to ben

eficiaries, may be exercised in favor of her second husband. 5. That the exercise of a limited power in respect to one-half of the prop

erty was illusory or collusive, would not make void the exercise of an unlimited power as to the other half, it not appearing that the latter power would have been differently exercised if the former had not been per

verted. 6. What is a perversion of power is a question of law for the court; but

whether the evidence establishes a perversion, under all the circumstances

of the case, is a question of fact for the jury. 7. If the fruits of a power be sold and conveyed by the beneficiaries, in ad

vance of the time for enjoyment, and the price received be a full and fair equivalent for the actual fruits, under a faithful and legal exercise of the power, the beneficiaries who have thus parted with their interest, with knowledge of all their rights, are not injured by any abuse of the power,

and a court of equity will not correct the abuse at their instance. 8. A fair sale, at full price, by legatees of full age, to the executor or his

agent, or to one purchasing at his instance, under an arrangement to convey to him, will not be set aside at the mere election of the legatees, after

New et al. vs. Potts.

years of acquiescence by them; and in view of the facts of the present case, it was not error to instruct the jury that the sale was prima facie valid, and that the onus of showing the contrary was upon the legatees.

Powers. Wills. Administrators and executors. Legacy. Sale. Before Judge HOPKINS. DeKalb Superior Court. March Term, 1875.

Reported in the opinion.

M. A. BELL; W. H. HULSEY, for plaintiffs in error.

L. J. WINN; M. A. CANDLER, for defendant.

BLECKLEY, Judge.

Potts, the defendant, was a double executor, being first, executor jointly with Mrs. Wootten, of her husband's will, and secondly, sole executor of her will, she having married him after the death of Wootten, her first husband. Wootten, the testator, died in 1855; his widow, afterwards Mrs. Potts, the testatrix, died in 1867. She made her will in 1859, after her intermarriage with Potts, and to him she bequeathed, besides a specific legacy, one-half of the general property which came to her under her former husband's will. The other half she bequeathed to the nine children of Mrs. Bishop, Wootten's deceased sister, giving to three of them $5 00 each, to four of them $300 00 each; to one of them $400 00, and to one of them the residue of that half. In all this property she had an estate for life, with power of disposition at her death. The will of Wootten, under which she took both the property and the power, expressly authorized her to dispose at her death, of one-half according to her own will and pleasure; but the other half she was to give, devise and bequeath to the children of Mrs. Bishop, the testator's deceased sister, in any way she might see proper, not being bound to make an equal division among them, but being allowed to use her own will and pleasure in the apportionment. A subsequent provision of the will directed that in case she should marry, she and her hus

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