167 Ga. 502 | Ga. | 1928
The court charged the jury as follows: “The
The court charged the jury as follows: .“Before you come to this question [of undue influence], if you believe, considering the evidence pro and con, if you believe that Mrs. Lindsey had such strength of mind and understanding as the law provides, as to the extent of her property and the situation of those to whom it would actually go, if she had that strength of intellect and understanding as to the disposition of her property, then this becomes her will and should be established as her will.” Caveators except to this instruction, for the reason that it eliminated entirely the question of undue influence. The grounds of caveat being lack of mental capacity to make a will and undue influence in procuring it, this charge entirely eliminated from the consideration of the jury the question of undue influence, the court instructing them, in effect, that if they believed that the testatrix had such strength of mind as to understand the extent of her property and the situation of those to whom it would actually go, then this instrument became her will, and should be established as such. If the evidence was sufficient to raise the issue of undue influence, this instruction was erroneous, because it eliminated from the consideration of the jury the question of undue influence. There was evidence which required the submission to the jury of the existence of undue influence vel non.
The court charged the jury as follows: “As to persuasions and influences brought on her to cause her to make a will different from the one she actually wished to make, you take into consideration the entire situation, the mental capacity of the party, the surroundings, and all these things; and if, as I say, you find that she had this mental capacity and understanding, knew about her property, what she had, knew the effect of the will, knew its effect upon her relatives, these caveators, if you believe that she had strength of mind to understand these things and she desired to
The court charged as follows: “The jury has no right to determine a case which they think should have been the will of a party, or to decide a case on how you think it ought to have been made; but your sole object is to determine whether the will made was the last will and testament of the deceased under the rules of law that I am giving you.” Caveators except to this charge, upon the grounds that it unduly prejudiced their cause; that they contended in their pleading and by the evidence that this was an unnatural will; that under the evidence testatrix had every reason to remember her brothers and nephews in the disposition of her property, but had ignored them and left it to strangers; and that such will therefore came into court with the presumption of law against it. It is undoubtedly true that where a will is attacked upon the grounds of the mental incapacity of the testatrix, and of undue influence in the procurement of it, it is always proper to inquire whether the provisions of the will are just and reasonable, and in accord with the state of the testatrix’s “family relations or the contrary.” Evans v. Arnold, 52 Ga. 169 (4); Ogburn v. Jones, 142 Ga. 360 (2) (82 S. E. 1070); Penn v. Thurman, 144 Ga. 67 (3) (86 S. E. 233); Holland v. Bell, 148 Ga. 277 (96 S. E. 419); Whitehead v. Malcom, 161 Ga. 55, 57 (6a) (129 S. E. 769). While the above instruction is not couched in clear and apt language, we do not think that it excluded from the jury the consideration of the reasonableness or unreasonableness of the disposition made by the testatrix of her estate, in passing upon the issue of her mental capacity to make a will and upon the issue of undue influence in its procurement. What the judge intended to instruct the jury was that if the testatrix possessed sufficient mental capacity to make her will, and it was not executed under undue influence, they could not set it aside because they thought she ought to have made a different will. In this view the instruction was not erroneous.
The court charged the jury as follows: “Eccentricity of habit or thought does not deprive any person of the power of making a testament. Old age and weakness of intellect resulting therefrom does not of itself constitute incapacity. The law makes provision that as a person grows older they naturally become weaker physically and mentally, but the law still invests them with the power and the Tight to dispose of their property by will, and it provides they may be eccentric, or their mind and body may
The court charged the jury as follows: “Certain evidence has been permitted to go before you as to the extent of her property, the situation of her property, the fact that she sold it, some of it, and moved from one place to another, and that it is alleged that she was harassed by others, and that certain others assisted her and lived with her, and all these things; and certain evidence has been allowed to go before you as to certain services rendered during her lifetime. Evidence as to these things is admitted for your consideration only to throw light on the question as to her mental capacity to make a will, and you will consider it for that purpose alone.” Caveators allege that this charge was error, because it restricted the jury’s consideration of this testimony to the question of mental capacity alone, when in fact it was also offered to show undue influence. The court erred in so restricting the jury’s consideration of this evidence. The jury should have been permitted to consider this evidence upon both issues raised by the caveat.
Caveators offered in evidence a suit brought on February 18, 1922, by the widow, children, and grandson of A. T. (Tobe) Lindsey, against testatrix and A. D. Hogg, administrator of her husband, in which it was alleged that A. T. Lindsey, at the time of his death on January 30, 1922, had an agreement with testatrix and the administrator of her husband, by the terms of which he
Dr. Carl DeVane was sworn as a witness for the propounder on the hearing of the proceeding to probate this will in the court of ordinary. His testimony was stenographically reported. On the trial of the case on appeal this witness was absent, and it was shown that he was a non-resident of the State. Counsel for the propounder offered the stenographic report of the testimony of this witness. Counsel for the caveators objected upon the ground that it was not shown by the stenographer to be a correct report
“The testimony of a witness, since deceased or disqualified, or inaccessible for any cause, given under oath on a former trial, upon substantially the same issue and between substantially the same parties, may be proved by any one who heard it, and who professes to remember the substance of the entire testimony as to the particular matter about which he testifies." Civil Code (1910), § 5773. If the testimony of an inaccessible witness, given in a former trial, has been reduced to writing, and agreed upon as correct between the parties and filed under the sanction and approval of the court, it not only may but must be adduced. Walker v. Walker, 14 Ga. 242 (3). But where the evidence on a proceeding to probate in the court of ordinary was taken down by a stenographer and subsequently transcribed, and where it does not appear that
As we grant a new trial, we express no opinion on the weight on the evidence.
Judgment reversed.