Howell v. Howell

47 Ga. 492 | Ga. | 1873

Warner, Chief Justice.

This was a bill filed by the heirs-at-law of Evan Howell, to set aside deeds executed by the said Evan, in his lifetime, conveying certain lands described therein to his son, Singleton G. Howell, oh the alleged ground of the want of sufficient mental capacity of said Evan Howell to execute the same, and on the further ground, that said deeds were procured to be executed by undue and improper influence exercised by the said Singleton G., over his father at the time the deeds were executed. On the trial of the cause the jury found a verdict for the complainants. A motion was made for a new trial, which the Court below granted; whereupon, the complainants ex*499cepted. There was much evidence on both sides as to the capacity of Evan Howell.; The Court granted the new trial on the ground of error in ruling out certain evidence offered by the defendant as specified in the record, and the question •made here is whether the'granting of the new trial was such an error of judgment as this Court, under the law, should control, and set aside. By the 3663d section of the Code it is declared,, that the Superior Courts may grant new trials in all cases when any material evidence may be illegally admitted to, or illegally loitheld from the jury against the demand of the applicant. In our judgment, the evidence specified in the second, fourth, fifth, sixth, seventh, eighth and ninth grounds of the motion for a new trial, was competent evidence to have been submitted to the jury, and the Court below erred at the trial in rejecting it. The deeds were proved to have been in the hand-writing of the defendant, and the evidence offered and rejected went to show that the maker of the deeds knew what he had done, and what the deeds contained. The issue on the trial was, whether Evan Howell had sufficient capacity to execute the deeds and to convey his property, and did he know the contents of the deeds? Hid he know what he had done in executing them to his son, Singleton ? The evidence offered was admissible to rebut the allegations of the complainants as to his want of capacity, and that he did not know the contents of the deeds, the more especially as the deeds were written by the defendant, and were alleged to have been fraudulently procured by him. But it was urged on the argument here that the evidence rejected was merely cumulative of similar evidence which was admitted, and therefore, the new trial should not have been granted. This is undoubtedly true in regard to the will which was rejected — the defendant got the benefit of that, but when the evidence of capacity was as conflicting as in this case, the credibility of witnesses was an important element for the consideration of the jury, and the defendant had the legal right to prove the facts by the witnesses which he offered. The testimony of some witnesses has more weight with the jury than others *500who may prove the same facts. Whilst it is true that the declarations or admissions of Evan Howell, after the title to the land had passed out of him, going to defeat that title would not be admissible in evidence in favor of the complainants against the defendant, still we think the evidence of Mrs. Graham and Archibald Howell, offered by the complainahts, was admissible in rebuttal of the evidence of the defendant, as it had a tendency to show that the defendant exercised some influence over his father. If he had sufficient capacity to execute the deeds of conveyance, and did execute them freely and voluntarily, the fact that he afterwards expressed himself dissatisfied, would not be, of itself, a sufficient legal ground 4o set them aside. This evidence could only be received in rebuttal of the defendant’s evidence, Which went to prove that the land was conveyed to him to make him equal with the other children, and as a circumstance to be considered by the jury for what it was worth as to the defendant’s influence over Ms father. In our judgment, the granting of the new trial in this case by the Court below was not such an error in the -exercise of its sound discretion as will authorize this Court to -control or reverse its judgment.

Let the judgment of the Court below be affirmed.

midpage