Etheridge v. Etheridge

255 S.E.2d 735 (1979)

41 N.C. App. 39

E. Ray ETHERIDGE, Executor of the Estate of Annie Mae G. Etheridge, Deceased v. Doc Horace ETHERIDGE, Jr., Executor of the Estate of Doc Horace Etheridge, Sr., Deceased, and Doc Horace Etheridge, Jr., Individually.

No. 781SC342.

Court of Appeals of North Carolina.

May 1, 1979.

*737 White, Hall, Mullen, Brumsey & Small by Gerald F. White and John H. Hall, Jr., Elizabeth, for plaintiff-appellee.

Twiford, Trimpi & Thompson by John G. Trimpi, Elizabeth, for defendants-appellants.

HARRY C. MARTIN, Judge.

The Supreme Court in Industries, Inc. v. Insurance Co., 296 N.C. 486, 251 S.E.2d 443 (1979), held the order of the trial court allowing plaintiff's motion for partial summary judgment on the issue of liability, reserving for trial the issue of damages, and denying defendant's motion for summary judgment, is not appealable. The same procedure appears to be involved in the case at bar. However, this appeal was argued 29 January 1979, prior to the filing of Industries, supra. We therefore treat the appeal as a petition for certiorari, allow the petition, and consider the questions presented.

Defendants argue the court erred in holding the affidavits offered were inadmissible because of the Dead Man Statute. N.C. Gen. Stat. 8-51. This statute prohibits a party, or interested person, from testifying in his own interest against the personal representative of a deceased person about a personal transaction or communication between the witness and the deceased. To determine whether testimony is incompetent under N.C.G.S. 8-51, these four questions must be answered affirmatively:

1. Is the witness (a) a party to the action, or (b) a person interested in the event of the action, or (c) a person from, through or under whom such a party or interested person derives his interest or title? 2. Is the witness testifying (a) in his own behalf or interest, or (b) in behalf of the party succeeding to his title or interest? 3. Is the witness testifying against (a) the personal representative of a deceased person, or (b) the committee of a lunatic, or (c) a person deriving his title or interest *738 from, through or under a deceased person or lunatic? 4. Does the testimony of the witness concern a personal transaction or communication between the witness and the deceased person or lunatic?

Peek v. Shook, 233 N.C. 259, 261, 63 S.E.2d 542, 543 (1951); Brown v. Green, 3 N.C.App. 506, 165 S.E.2d 534 (1969).

Applying the above standards to the answer of defendants, it was not admissible as evidence, even if verified.

The affidavit of Owen contained testimony that the farm rental was set at $30 per acre; his father, Doc, Jr., did not have to pay that amount on land that he cleared; rental could be paid to the grandfather; his grandmother, Annie, knew the rent for 1974 had been paid, and she did not mind her husband holding and cashing the rent checks.

Owen is the son of Doc, Jr. and the grandson of Annie Mae G. Etheridge and Doc Etheridge, Sr. Owen was entitled to nothing under his grandmother's will. In re Etheridge, 33 N.C.App. 585, 235 S.E.2d 924, dis. rev. denied, 293 N.C. 253, 237 S.E.2d 535 (1977). In Doc, Sr.'s will, Owen is a legatee as a member of the class, "grandchildren living at the time of my death." As such, he is entitled to share the cash residuary of this estate after specific bequests, debts, and expenses have been paid.

In this case, the affidavit of Owen was admissible. Owen is not a party to this action, nor is he a person interested in the event of the action. A person interested in the event of an action must have a "direct legal or pecuniary interest" in the outcome of the litigation. Burton v. Styers, 210 N.C. 230, 231, 186 S.E. 248, 249 (1936). The amount of money in the grandfather's estate may be enhanced by this lawsuit, thereby affecting how much, if anything, Owen will take. Although Owen's interest is pecuniary, it is not direct and is too remote and speculative to constitute a direct pecuniary interest. Owen's interest will not be affected by the outcome of this litigation. He will be entitled to take under his grandfather's will no matter what the outcome of this action. His legal rights will not be determined in this lawsuit. Even if defendants are successful in this action, it is possible that after payments of debts and specific bequests, there would be no residuary cash for the grandchildren. Owen is not testifying in his own behalf or that of a party succeeding to his interest. Further, Owen, except for paragraph 4 of the affidavit, is not testifying as to a personal transaction or communication between himself and the deceased. A personal transaction or communication within the purview of the statute is anything done or said between the witness and the deceased tending to establish the claim against the personal representative of the deceased person. Peek v. Shook, supra. Since all four questions for determining the incompetency of Owen as a witness under N.C.G.S. 8-51 cannot be answered affirmatively, his affidavit should have been admitted at the summary judgment hearing.

The affidavit of Owen raises a genuine issue of material fact in the suit between the plaintiff and the defendant Doc Etheridge, Jr., individually, as to whether there was an express contract for the rental of the farm at $30 per acre. The affidavit also raises a genuine issue of material fact in the suit between the plaintiff and the defendant Doc Etheridge, Jr., executor of the estate of Doc Etheridge, Sr., as to whether the estate of Doc Etheridge, Sr. is liable to the plaintiff for any rent money received from Doc, Jr.

At the summary judgment hearing, the court had before it plaintiff's interrogatories to Doc, Jr. and his sworn answers. None of the parties objected to the admission or consideration by the court of this evidence. In order to have the benefit of N.C.G.S. 8-51, a party must lodge a proper objection at the time the incompetent testimony is offered. Smith v. Allen, 181 N.C. 56, 106 S.E. 143 (1921); Meroney v. *739 Avery, 64 N.C. 312 (1870). The objecting party has the burden of establishing the incompetency of the evidence. Sanderson v. Paul, 235 N.C. 56, 69 S.E.2d 156 (1952).

By this evidence Doc, Jr. states he did not farm all of Annie's cleared land; he farmed 223.1 acres, rather than the 297 acres alleged by plaintiff; that he has the cancelled check dated 30 December 1974 payable to D. H. Etheridge, Sr. for $6113.34; the farmland was rented directly from his father as Annie's agent with her full knowledge, approval, and acquiescence.

This evidence controverts the evidence contained in plaintiff's complaint used as an affidavit. Genuine issues of material facts are raised.

There being genuine issues of material facts, the order for partial summary judgment was improvidently granted.

The order granting partial summary judgment is

Reversed.

MORRIS, C. J., and CARLTON, J., concur.