| Ga. | Jan 15, 1858
By the Court. delivering the opinion.
Was the Court right in refusing to give the second, third, and fifth requests, in charge ?
As to the refusal to give the second, in charge.
The law requires, that in every case, the testator must know the contents of the will; but in ordinary cases, the law will take his bare signature, as proof, that he does know them.
This is not an ordinary case. In this case, the person who wrote the will and his kin, took a large part of the property willed away.
Now in such a case, what amount, or kind, of proof, does the law require, to show that the testator knew the contents of the will? Does it require proof, that the will was read over to him, or read by him, or, proof that he gave instructions for a will, corresponding with the will? And will it be satisfied by proof of no facts but these two, reading or instructions ?
It is admitted on all hands, that proof of one or both of these two facts, is the most satisfactory of any; still we are not prepared to say, that there may not be other facts, the
In such a case as the present, in which the person who writes the will, takes a large interest under it, and he a stranger to the blood of the testator, the presumption of law, is, that the testator, although signing the will, does not knoio its contents. The onus, then, is upon him who propounds the will, to rebut and overcome this presumtion, by showing, that the testator does know the contents of the will. Now, is knowledge of the contents of the will, susceptible of being shown, by proof short of that above indicated ? It seems difficult to conceive, that it is. See Bell vs. Man, 5 Ga. 469; Paske vs. Ollatt, 1 Eccl. R. 273.
There is nothing contrary to this view even in the dicta in Barry vs. Butlin, 6 Eccl. Rep’ts, 417, and, in the decision^ there is, perhaps, something in accordance with the view. In that case, there were interlineations in the handwriting of the testator, and other facts, showing, all together, that he miist have read the will over.
We do not know of any authority, for the distinction taken in the request, that “it is only in a case where the capacity or mind of the testator is doubtful, and the person writing the will takes a considerable legacy under the will, that the law requires proof of the reading of the will by the testator or a knowledge of its contents.” Suspicion is aroused, even, when the testator’s capacity is undoubted. The Roman law entertained this suspicion to such a degree, that it, declared that the person who writes - the will, shall take no benefit under it. Paske vs. Ollatt, 1 Eccl. R. 273.
We think, that we may say, that if the case be one in which, the person who writes the will takes a large benefit under it, then, in order to show, that the testator knew the contents of the will, it is necessary to prove that the will was read to him, or read by him, or that he gave instructions for such a will,
In the present case, the person who wrote the will and his near relations took, as we have seen, a large share of the property disposed of by the will.
We, consequently, see nothing wrong in the refusal of the Court, to charge this second request.
As to the the third request.
Were the facts, that this testator signed the will, and said that it was his will, and that he had read it or heard it read, such as to require a jury to sustain the will, even though the person who wrote the will, took a large benefit under it ? This is the question involved in this request.
And this question, according to the view already taken of the second request, may be resolved into this, were these facts as strong, as would have been the fact that the testatorread or heard read, the will; or the fact that he gave instructions for such a will, had these latter facts existed.
The circumstances of the case considered, we think they were not as strong. These circumstances, go far, very far, to show, that the testator neither read the will, nor heard it read. If he neither read it nor heard it read, his saying that it was his will, could amount only to this, that he had unbounded confidence in the person who drafted it, was willing blindly to accept any will which he might write. The fact of the signature then, is, of all those mentioned in the request, the only one that can be much depended on, as a real fact. And that, by itself, as we have seen, will not do. Certainly the others of those facts add very little to that one, not enough to make the whole lot equal to a reading of the will by or to the testator, or to instructions for the will, given by him.
We think, then, that the Court was justified, in refusing this request.
We think the judgment ought to be affirmed.
Judgment affirmed.