171 Ga. 300 | Ga. | 1930
Concurrence Opinion
concurring specially. I concur in the judgment of affirmance in this case. I am of the opinion that the court below properly held that there was no evidence authorizing the jury to find in favor of the caveators, on the ground that the will was procured by undue influence. Nor do I think that any error is shown in any of those grounds of the motion containing exceptions to the admission or exclusion of evidence, where the objection is properly made and stated. Many of the grounds, however, relating to the admission and exclusion of evidence consist of lengthy statements of the testimony of witnesses and colloquies between court
Alberta Wylly Ellis and Thomas C. Wylly propounded the will of Albert Wylly. They were executrix and executor, and sole beneficiaries under said will, save as to a stated cash sum to a named person not involved in this litigation; and they were niece and nephew of the testator, who died a bachelor. Margaretta Wylly Hillyer, Helen G. Wylly, Emma Wylly Crum, and Margaret E. Wylly individually and as guardian of Martin D. Wylly Jr., nieces and nephew, filed a caveat upon the grounds that the testator was not of sound and disposing mind when making the alleged will; that he made said will under undue influence exerted by persons unknown to caveators; and that at the time of executing the will testator’s mind was so exceedingly weak that it was prey to divers practices by parties unknown to caveators. On demurrer the ordinary struck all of the caveat except the ground that testator was not of sound and disposing mind, since no persons exerting undue influence were named. After hearing evidence on the ground so remaining, the ordinary passed an order dismissing the caveat and admitting the will to record. Caveators appealed to the superior court.
There was no evidence of undue influence. There was evidence that testator was delirious on the day he signed the will, consisting of the testimony of his nurse at the Oglethorpe Sanitarium in Savannah, where he" died ten days after signing the will, and the testimony of his negro porter who visited him there; these to the effect that he talked “out of his head,” and gave irrational instructions to the porter. The testator was in the sanitarium about twenty-five days, suffering from an unusual malady which was finally diagnosed as a fungus growth in the lungs, causing h'im to cough much. There was testimony by his physician and the lawyer who drew the will, that, on the day it was signed in the sanitarium, the testator was rational, mentally normal. There was testimony by which undue influence by the beneficiaries and others was sought to be established; but this was wholly extraneous to the
The jury found for the propounders. The caveators moved for a new trial. The special grounds of the motion complain that it was hearsay for the attorney to testify that the messenger from the testator had told him testator wished to make a will; that certain letters throwing light on the testator’s business affairs were erroneously admitted; that it was error to permit the nurse to testify, that, if testator had shown further signs of being irrational after she made her entry to that effect early in the day, she would have also charted that, because this amounted to a conclusion by witness that testator was not irrational after the first entry; that it was error to forbid caveators to read to said nurse and the physician the entries of another nurse, and to question the witnesses about them; that the court illegally excluded chart entries of said other nurse, because she had not been introduced to establish them, and illegally charged the jury to disregard so much of the whole chart introduced as was entered by this other nurse, because such entries had not been proved; that answers to divers questions pro
Lead Opinion
The judge did not err in his rulings upon the admissibility of evidence, or in his instructions to the jury, of which complaint is made. They were correct as a matter of law, and were properly adjusted to the pleadings and the evidence. The case mainly turns upon a determination by the jury of the question whether the testator was of sound and disposing mind when the will was made. While there was some evidence that testator was irrational at several specified times, while suffering delirium, there was nevertheless no evidence that such was the case at the time he signed the will, but on the contrary there was direct testimony that at the time of the execution of the will he was rational and mentally normal, and his will as to the disposition of his property clear and distinct. . The evidence authorized the jury to find that at the time the will was executed the testator was competent to effect the disposition of his property by will. The judge did not err in overruling the motion for new trial.
Judgment affirmed.