123 Ga. 673 | Ga. | 1905
Reuben A. Credille died September 8, 1902, aged seventy-six years, leaving as bis next of ldn four sons and two daughters, all of age. On the tenth of October thereafter a paper purporting to he his last will and testament was probated, in common form, by his son, W. Florence Credille, the date of its execution being February 27, 190.2. In it the testator gave the hulk of his property, consisting of his old homestead of 650 acres of land, to this son, his wife, and children. He gave nothing to his other children, except to one other son, to whom he bequeathed a feather' bed and piRows. W. Florence Credille was named as sole executor in this instrument. Some months after the probate the other three sons and' one of the daughters of the testator brought a petition in the court of ordinary, to set aside and cancel this will, against W. Florence Credille, as executor and as an in
1. Upon the trial the court gave section 3258 of the Civil Code in charge to the jury. That section reads as follows: “ A testator, by his will, may make any disposition of his property not inconsistent with the laws or contrary to the policy of the State; he may bequeath his entire estate to strangers, to the exclusion of his wife and children, but in such case the will should be closely scrutinized, and, upon the slightest evidence of aberration of intellect, or collusion or fraud, or any undue influence or unfair dealing, probate should be refused.” One ground of the motion for a new trial alleges that the court erred in giving this instruction, the assignment of error being that the facts of the case did not authorize it and that it tended to prejudice the case of the propounders in the minds of the jury. We think a new trial should
2. Another ground of the motion .was-, that the court erred in charging as follows: “ The burden of proof in the case rests upon the propounders of the will in the first instance. In the opening of the case the burden of proof is upoq.-. Florence Credille to propound the will, and he is here to-dayl asking that the will be sustained as a valid will. The burden rests upon him to show that the paper was executed, and to show the capacity of the testator.” There was no error in this charge. It was in accordance with the decisions of this court in Evans v. Arnold, 52 Ga. 169, and Wetter v. Habersham, supra. All that the propounders
3. The motion for a new trial also complained of the admission in evidence of various declarations made by the testator after the date when the paper purporting to be his will appears to have been executed. One of these declarations was to the effect that he had not made a will; two others were that he never made a will in his life, and the other was .that he understood there was what was supposed to be a will he had made in Greensboro, and he wanted the person to whom the declaration was made to bear witness, if he [the testator] had signed such a paper, he didn’t know anything about what he was doing. These declarations were admissible, not as evidence of the facts which they purported to declare, nor as evidence that any fraud was practiced upon the testator, or any undue influence exercised over him, nor as evidence of a revocation of any will that he might have made, but as
The other grounds of the motion are The general ones and grounds of the same nature, complaining, that the verdict was contrary to various quoted extracts from the charge of the court.
Judgment reversed.