148 Ga. 277 | Ga. | 1918
The will of Miss Mary Jane Whaley was propounded for probate in solemn form. Mrs. Martha A. Bell, the
1. In one of the grounds of the motion for new trial complaint is made of the admission in evidence of the deed from B. A. Bell to Mrs. Bell and Miss Mary Jane Whaley, the testatrix, purporting to convey 137 acres of land upon the consideration of $237. The half interest in the 137 acres'of land described in the deed composed the estate, or at least the chief part of it, owned by the testatrix at the time of her death. It is insisted that the deed was irrelevant and- illustrated no issue in the case. Evidence tending to show that the land was of the value of forty dollars per acre at the. date of the execution of the will was also admitted on behalf of the caveatrix. This evidence was objected to as irrelevant and
2. A witness for the caveatrix was permitted to testify to a conversation between the witness and Wiley Holland, the husband of the propounder, in which the witness asked Holland whether the testatrix had “mind enough to sign up -the papers she signed for you all,” referring to the deed and will made by Miss Whaley to Mr. Holland’s wife. The witness was permitted to testify that no response was made to this inquiry. The admission of this evidence is excepted to, and the ground urged is that the same was irrelevant, and that a conversation between the witness and Mr. Holland, the husband of the' propounder and sole devisee in the will, .was not admissible to impeach the will. We think this evidence was admissible, at least as tending to impeach Wiley Hoh land, who testified for the propounder. His direct testimony was to the effect that the testatrix had a sound, disposing mind and memory, and was in fact a woman of good judgment. It is true
3. After charging the jury that “every person is entitled to make a will, unless laboring under some disability of the law,” the court instructed the jury as follows: “This disability arises either from the want of capacity or the want of perfect liberty of action.” The last-quoted charge is assigned as error for the reason that it impressed the jury with the idea that a party making a will must have perfect liberty of action in every respect, that is, a party making a will must have perfect liberty of action to go and do as he or she pleases in all respects, “and this was especially harmful to the movant in this case, for the reason that the evidence showed that the testatrix was a cripple and did not have 'perfect liberty of action’ to go about over the country except when she was assisted'by the people with whom she lived.” The charge excepted to is section 3838 of the Civil Code. The charge is not subject to the criticism made, nor can it be conceded that it states the rule too strongly against the propounder of the will.
4. The court .also charged section 3841 of the Civil Code, as follows: “In cases of doubt as to the extent of this weakness [in the mind of the testator], the reasonable or unreasonable disposition of his estate should have much weight in the decision of the question [as to whether it is a valid will.] ” It is said that this charge was error for the reason that it invaded the province of the jury, in violation of section 4863 of the Civil Code, which forbids the judge to express an opinion on the weight of the evidence. The reply is that it is the law of this State as contained in the Code. Sections 3841 and 4863 are in pari materia. Laws pari materia must be construed with reference to each other. - So construed, section 3841, in so far as it prescribes a rule -of evidence, constitutes an exception to the general rule contained in section 4863, supra. Where section 3841 of the Code is applicable under the pleadings and evidence in a case, it may be given in charge to the jury.
We have carefully examined.the several grounds of the motion
Affirmed.