130 Ga. 37 | Ga. | 1908
(After stating the foregoing facts.)
A will was propounded for probate. A caveat was interposed. On demurrer the- grounds of the caveat were stricken, and after the introduction of evidence a verdict and judgment were had admitting the will to probate. The caveatrix (the minor child of the testatrix) excepted.
It was contended, inasmuch as there .was no allegation that the husband and wife were living separately, that neither could she be mistaken as to his intention in regard to the custody of the child, nor could she be defrauded on that subject; but that she could easily ascertain his intention by inquiry, and could not be controlled by fear or fraud in regard to his conduct. It would be a most happy condition if fear and suspicion never entered the matrimonial domicile, and if during the cohabitation such perfect con-, fidence existed that no third party could poison the mind of husband or wife against the other, or influence the conduct of either by fraudulently playing upon his or her fears or affections, to the detriment of the other. But this can not be laid down as a universal matrimonial rule. Nor are doubt and suspicion, when once aroused by fraudulent artifices, likely to be instantly allayed by inquiry of the person toward whom they are directed. At least there is no such certainty that they will be thus allayed as to authorize its announcement as a proposition of law, rendering the ground of caveat alleging such facts demurrable. In Young v. Mallory, 110 Ga. 10 (35 S. E. 278), the testator knew of the existence of the person claimed to be his next of kin, and had full time and opportunity, before executing his will, for ascertaining with certainty the truth or falsity of the claim of relationship. He made a will leaving nothing to such person. A caveat was interposed to its propounding, on the ground that it was executed under a mistake of fact as to the existence of the heir. It was held, under the evidence, that he knew of the existence of the person claiming to be of kin to him, and of such claim, and that the case did not fall within the provision of the law on the subject of a mistake as to the existence of the heir. In regard to mistakes of fact touching the conduct of an heir, see the discussion on pages 13 and 14 of that authority.
Judgment reversed.