Hawkins v. Hawkins

264 S.E.2d 218, 245 Ga. 284, 1980 Ga. LEXIS 766

• Court: Supreme Court of Georgia
• Decided: February 20, 1980
• Docket: 35640
• Status: Published

Opinion

Nichols, Chief Justice.

Louise Hawkins sued her husband, Lucies Hawkins, for divorce. Lucies counterclaimed seeking to impress a trust on real property conveyed by him to her during their marriage. Louise died pending suit and Leola Phipps, her executrix, was substituted as a party.

Lucies sought to prove that he and Louise intended for the warranty deed to operate as a trust deed by introducing the testimony of his brothers, Rich Hawkins and Robert Hawkins, regarding conversations each of them had with Louise before her death. The trial court found as facts that Rich Hawkins and Robert Hawkins were the heirs at law of Lucies Hawkins (an erroneous finding since Lucies was in life), were interested in the land, and had acted in behalf of Lucies Hawkins in asking Louise to reconvey the land to Lucies. He therefore excluded their testimony under the pre-1979 version of the Dead Man’s Statute, Code Ann. § 38-1603, and, there being no other evidence to support Lucies’ counterclaim, he directed a verdict for Louise’s executrix.

Where, as in the present case, the question of the competency of witnesses depends upon the determination by the trial court of questions of fact, this court will affirm if there is any evidence to support the trial court’s findings. Dorminy v. Russell, 182 Ga. 635, 636 (2) (186 SE 679) (1936). The transcript supports the trial court’s findings that the brothers of Lucies Hawkins were pecuniarily interested in the result of the suit and had acted as agents for Lucies Hawkins in seeking to have Louise reconvey the property to Lucies.

Judgment affirmed.

All the Justices concur.