171 Ga. 664 | Ga. | 1931
(After stating the foregoing facts.) In the last appearance of this case before the Supreme Court (Deans v. Deans, 166 Ga. 555, 144 S. E. 116) the judgment' of the superior court was reversed because the court refused to charge the jury, as duly requested in writing, in the language of the Civil Code, § 3832. This court held that' as the testator was a father leaving one child but no wife, and since he had devised his entire estate (except a fund to be used in preserving his cemetery lot) to his mother, brothers, and sisters, and one person not related to him, his entire estate had been bequeathed to strangers to the exclusion of his son. This made it not only necessary but absolutely essential that § 3832 should be given in charge to the jury, but also that the jury be instructed that where a testator has excluded his wife or his child or children and left h'is estate to strangers, then the case is to be tried by the rule of evidence prescribed in this code section, which declares that "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. . .”' In passing upon the peculiar applicability of this code section to the evidence in the case it was necessary to construe the meaning of the word
In the present case, in addition to the three general grounds, movant presented an amendment to the motion for a new trial containing thirty-nine additional grounds, and error is assigned in the bill of exceptions to the judgment overruling the motion and refusing a new trial: Each and all of the exceptions have been carefully and critically examined, and may be divided into three classes: (1) Errors of the court in charging the jury, and in refusing to charge the language requested in certain written requests. (2) Errors in the admission of testimony. (3) The entire insufficiency of the evidence to support a verdict in favor of the caveator. The first sixteen grounds of the amendment to the motion for new trial assign error upon instructions delivered by the court to the jury in the course of the-charge as delivered. The 17th, 18th, 19th, 20th, 21st, 22d, 23d, 24th, 25th) 26th, 27th, 28th, 2-9th, and 30th grounds deal with the failure of the court to give the requested instructions referred to in these grounds. All of the assignments of error based upon the instructions of the court as delivered, or overruled, we hold to be without merit. These assignments of error are clearly based upon a misconception of the purpose of the lawmakers in adopting section 3832 of the Code of 1910, and thereby making it the law of this State. Central Ry. Co. v. State, 104 Ga. 831 (31 S. E. 531, 42 L. R. A. 518). It has
The thirty-first ground of the amendment to the motion for a new trial assigns as error the court permitting Mr. Conyers, counsel for Frank Deans, to ask the caveator, /What is what is known as the Rhodes Scholarship?55 and permitting him to answer “It is a scholarship founded by Cecil Rhodes for the purpose of breeding international amity.55 The propounder objected on the ground that the question and answer were not material, and the court overruled the objection. It is stated in the assignment of error that the witness had previously testified that he came to Atlanta in December, 1924, from the University of Michigan, to stand an examination for the Rhodes Scholarship after having been recommended for the examination by the authorities of the University of Michigan. In the circumstances of the case the court did not err in overruling the objection. A father suffering from no aberration of intellect, and uninfluenced, and not overreached by fraud and misrepresentation, and unless there had been some kind of unfair dealing, would ordinarily have wished to have seen his son, and would have appreciated the effort of the son to see him after their long separation. There was evidenc authorizing the jury to find that one of the brothers of the testator, in particular, was very anxious that the testator should not receive any communication from this absent -son. Furthermore, there was testimony tending to throw discredit upon all the statements of the caveator, and the jury had a right to consider the circumstance that the witness had been
Without specifically referring to the many circumstances in the evidence, the jury were authorized to find there was a preconceived plan on the part of the brothers of the testator (perhaps ' participated in by the entire family) to exclude the defendant in
Judgment affirmed.