Vannoy v. Green, 206 N.C. 80 (1934)

Feb. 28, 1934 · Supreme Court of North Carolina

206 N.C. 80

MABEL GREEN VANNOY v. JOSIE GREEN, Widow of G. C. GREEN, Deceased, et al.

(Filed 28 February, 1934.)

1. Evidence D b — Husband held competent to testify as to transaction between his wife and his wife’s deceased father.

The issue involved in this action was whether intestate had made advancements to his daughters during his lifetime. A check made payable to one of the daughters and signed by intestate was introduced in evidence. The daughter’s husband was permitted to testify over objection that the check was given his wife as a wedding present. The clerk had found that the personalty was sufficient to cover all alleged advancements. There- was no evidence that there were any children of the marriage of intestate’s daughter and the witness. Held, the husband’s testimony was competent, he having no interest in the event of the action. O. S., 1795.

2. Same — Party to action held competent to testify to transaction between party’s sister and deceased father relating solely to sister’s interest.

The issue involved in this action was whether intestate had made advancements during his lifetime to his daughters. A check made payable to one of the daughters and signed by intestate was introduced in evidence, and the other daughter was permitted to testify over objection that the check in question was given her sister as a wedding present. Held, the evidence was competent, the transaction testified to not being between the witness and the deceased, but between the witness’s sister and deceased father. G. S., 1795.

Civil actiok, before Clement, Jat July Term, 1932, of Asiie.

G. C. Green died intestate in Ashe County on 16 April, 1931, owning real and personal property described in tbe petition. Tbe defendant, Josie Green, is tbe widow of tbe deceased and entitled to a dower interest in tbe property. Tbe defendants, tbe Austin children, are tbe children and heirs at law of Ola Green Austin, daughter of tbe intestate, and tbe defendant, G. C. Green, Jr., is tbe son of tbe intestate by a subsequent marriage. Tbe plaintiff is tbe daughter of tbe intestate by tbe first marriage and instituted a special proceeding praying that dower in said land be allotted to tbe widow and that tbe real estate be divided according to tbe respective interests of tbe several heirs at law. Tbe widow filed an answer alleging that certain advancements bad been made by tbe intestate to tbe plaintiff, Mabel Green Vannoy, and her deceased sister, Ola Green Austin, which should’ be accounted for in tbe settlement of tbe estate.

Tbe clerk entered a judgment reciting that tbe “personal property is sufficient to pay all debts, charges of administration and any alleged advancements which might be recovered by any of said parties against any other of said parties, it is, therefore, considered and adjudged that said issue as to tbe alleged advancements be and it is hereby certified and transferred to the civil issue docket of tbe Superior Court for trial according to law.”

At the trial two issues were submitted to ascertain what advancements, if any, bad been made by G. 0. Green, deceased, to bis daughter, the plaintiff, Mabel Green Vannoy, and also to bis deceased daughter, Ola Green Austin. Tbe jury answered that neither of said parties bad received any advancement from tbe father.

Tbe defendants offered in evidence certain checks found among tbe papers of tbe deceased, which bad been made payable to tbe plaintiff, Mabel Green Vannoy, by tbe deceased, and other checks payable to Ola Green Austin. Among tbe checks so found there was one in tbe sum of $500.00 signed by G. C. Green, payable to Mabel Green Vannoy, tbe plaintiff, dated 1 January, 1926. There was another for $500.00 signed by G. O. Green and payable to Ola Green Austin, dated 30 April, 1919. Tbe checks offered in evidence were drawn in various amounts from tbe year 1919 to tbe year 1928 or 1929.

Tbe evidence for Mabel Green Vannoy tended to sbow tbat ber mother, the first wife of deceased, G. C. Green, died in 1921, and that he married a second time on 22 September, 1926. Mabel Green Vannoy was married in December, 1925, and her sister, Ola Austin, was married on 30 April, 1919. Mabel Green Vannoy offered evidence tending to show that she had been postmistress from April, 1921, to November, 1925, and received a salary of $500.00 per year, and that she taught school prior to her marriage and owned and sold certain cattle. There was also evidence that Ola Green Austin had a chestnut orchard and that her father paid her for certain chestnuts.

W. E. Vannoy, the husband of Mabel Green Vannoy, testified that he was married on 22 December, 1925, and returned from his wedding trip on 1 January, 1926, to the home of his wife’s father, the intestate, and that the check for $500.00, dated 1 January, 1926, and signed by G. O. Green and payable to Mabel Green Vannoy, was a wedding present given his wife by her father. The defendant objected to the testimony, asserting that it transgressed O. S., 1795. Mabel Green Vannoy testified that her deceased sister, Ola Green Austin, was married on 30 April, 1919, and that the check for $500.00 signed by her father, G. O. Green, deceased, and dated 30 April, 1919, was a wedding present for her sister. The defendant objected to this testimony for the same reason heretofore mentioned.

From judgment upon the verdict defendant appealed.

Ira T. Jolinston for Mabel G. Vannoy.

W. B. Austin for Hazel Austin, Glenn, Austin, Mary Austin and Alice Lee Austin.

Bowie & Bowie for defendants, Josie Green, widow of G. C. Green, deceased, and G. G. Green, Jr.

BeogdbN, J.

Two questions of law are presented by the record.

1. Does the application of C. S., 1795, render incompetent the testimony of Wade Vannoy that his father-in-law, the deceased G. C. Green, gave a five-hundred-dollar wedding present to his wife, the plaintiff, Mabel Green Vannoy?

2. Does the application of said statute render incompetent the testimony of Mabel Green Vannoy that her father, G. C. Green, deceased, gave her sister, Ola Green Austin, deceased, a check for $500.00 as a wedding present?

Both questions must be answered in the negative. In considering the answer to the first question, it must be noted that Wade Vannoy had no interest in the event of the lawsuit; that is to say, he would get nothing of pecuniary value out of the lawsuit, however terminated. There is no evidence that Wade Vannoy and the plaintiff, Mabel Green Yannoy, have children, and the testimony of Wade Vannoy tended to show a transaction between the deceased G. C. Green and the wife of the witness. Moreover, the clerk found as a fact that the personal property of decedent was sufficient “to pay all debts, charges of administration and any alleged advancements which might be recovered by any of said parties against any other of said parties.” Consequently, the evidence of the husband was competent by virtue of the application of the principles applied in Hall v. Holloman, 136 N. C., 34, 48 S. E., 515; and Helsabeck v. Doub, 167 N. C., 205, 83 S. E., 241.

The testimony of Mabel Green Yannoy that her father, the deceased, gave $500.00 to her deceased sister, Ola Green Austin, as a wedding present was competent. This conclusion is established by various pronouncements of this Court, notably: Johnson v. Cameron, 136 N. C., 243, 48 S. E., 640; In re Mann, 192 N. C., 248, 134 S. E., 649; Barton v. Barton, 192 N. C., 453, 135 S. E., 296. The applicable principle was stated in the Johnson case, supra, as follows: “But here the witness testified as to no transaction or communication between herself and W. M. Cameron. It was a transaction between W. M. Cameron and her husband, and as to that she is a competent witness notwithstanding her interest. . . . This case does not turn upon the witness being a party or interested in the event — she is both. But the transaction with the deceased here testified to by a party to the action was not between the witness and the deceased, and hence by the terms of the statute and by the decisions . . . the witness was properly admitted to testify in regard thereto.”

There are certain exceptions to the charge of the trial judge, but an interpretation of the charge as a unit fails to disclose reversible error.

Affirmed.