Lovejoy Boyer, as a creditor of the estate of Elmer Treisch, deceased, sought to probate in solemn form the alleged will of the deceased. Mrs. Laura Treisch Lee, the daughter and only hem at law of the testator, by her caveat, as amended; denied the validity of the will, the grounds of caveat being mistake of fact as to the conduct of the caveatrix, monomania in connection with the caveatrix, and undue influence exercised by Bess Renouf, the person named as executrix in the will. The caveatrix appealed from the judgment of the ordinary admitting the will to probate. On the trial of the case in the superior court the jury found in favor of the propounder. The motion for new trial, as amended, of the caveatrix was denied by the trial judge, and the exceрtion is to this judgment.
In the alleged will of the testator numerous bequests were made in various sums, the largest bequest being $10,000 to the Georgia Chiropractic Association for a student loan fund. The only bequest to the caveatrix was as follows: “I hereby give and bequeath to my daughter, Laura W. Lee, of Portland, Oregon, the sum of $5 to be paid to her in cash by my executor im *28 mediately after he is qualified. My reason for giving her this sum is that I have heretofore permitted her to draw from my funds and particularly the First National Bank, Macon, Georgia, the sum of some $25,000 or $30,000, the exact amount of which I do not recall. I consider this advancement and gift to her being a sufficient amount to receive from my estate.”
1. The first sentence of the brief of evidence, duly approved by the trial judge, is as follows: “Caveator admitted a prima fаcie case, and that at the time of the execution of the will the testator had testamentary capacity.” It has been earnestly contended by counsel for the propounder in oral argument and by written briefs that the admission that “at the time of the execution of the will the testator had testamentary capacity,” required the finding by the jury that the will was valid, and that the testator was not laboring undеr monomania, mistake of fact, or undue influence in the execution of the will.
Counsel for the caveatrix urge that the admission should be construed only as an admission of a prima facie case. See
Bowles v. Bowles,
The record supports the contention of counsel for the caveatrix that on the trial the admission was apparently treated merely as the admission of a prima facie case. However, this court must decide cases on the duly approved record sent to us. “Presumptions of law are sometimes conclusive, and an averment to the contrary shall not be allowed. These are termed estoppels, and are not generally favored. Among these are . . . solemn admission made in judicio, . . .”
Code
§ 38-114;
Fisher v. George S. Jones Co.,
In the often-quoted case of
Slaughter v. Heath,
In
Morgan v. Bell,
There can be no question but that the admission that the testator had “testamentary capacity” at the time of the execution of the will would preclude any finding that the testator was insane or an imbecile. Would the admission preclude the caveatrix from showing that he was afflicted with monomania in regard to1 the caveatrix?
*30
In
Dibble v. Currier,
In
Yarbrough v. Yarbrough,
We conclude that the admission of “testamentary capacity” of the testator by the caveatrix eliminated any consideration of the ground of caveat that the testator was afflicted with monomania from which the will resulted.
While undue influence “whereby the will of another is substituted for the wishes of the testator”
(Code
§ 113-208) will invalidate a will, a testator can not be said to lack testamentary capacity because he executes a will under undue influence. The distinction in the matters invalidating a will is shown by the following language from
Franklin v. First Nat. Bank of Atlanta,
A will executed “under a mistake of fact as to the existence or conduct of an heir at law of the testator"
(Code
§ 113-210) is inoperative only in so far as such heir is concerned, and where a testator has several heirs and the mistake of fact exists only as to a part of his heirs, the entire will is not necessarily void.
Adams v. Cooper,
The admission in the present case that the testator had testamentary capacity at the time of the execution of the will eliminated any issue made by the caveat that the testator was laboring under any mental disability to execute the will, including monomania from which the will resulted; but did not eliminate the issue of undue influence and mistake of fact.
2. In
Ransone v. Arnold,
In the Bansone case the will 'had already been admitted to probate, and it is therein stated: “Probate was a determination *32 of the legal execution of the will, testamentary capacity, and issues of undue influence, fraud, or mistake in execution of the will.” The question before the court was the construction of the will, and not whether it should be admitted to probate. The Ransone case has no application to a case like the present one where it is contended by a ground of the caveat that the testator was laboring under a mistake of fact as to advancements to the caveatrix.
3. Grounds 4 through 9 of the motion for new trial, as amended, assert that the trial judge erred in excluding testimony by the caveatrix as to transactions and communications betweеn the caveatrix and the testator. This evidence was offered for the purpose of showing that the testator was laboring-under a mistake of fact as to the conduct of his daughter in his belief that she had withdrawn large amounts of money from his account. It is insisted that these transactions and communications with the deceased testator were not inadmissible under Code § 38-1603 (1), and that the evidence was pertinеnt to the issue of mistake of fact.
Code
§ 38-1603 (1) provides: “Where any suit shall be instituted or defended by a person insane at the time of trial, or by an indorsee, assignee, or transferee, or the personal representative of a deceased person, the opposite party shall not be admitted to testify in his own favor against the insane or deceased person as to transactions or communications with such insane or deceased person whether such transactions or communications were had by such insane or deceased person with the party testifying or with aiiy other person.” In
Brown v.
Carroll,
It is asserted by counsel for the propounder that the case of
Brown v. Carroll,
supra, was decided under the act of 1866, and prior to the act of 1889, and that it is not applicable under present
Code
§ 38-1603 (1). The case of
Brown v. Carroll,
supra, was construing the act of 1866 (Ga. L. 1866, p. 138; Code of 1868, § 3798 (1)), as follows: “Where one of the original parties to the contract or cause of action in issue or on trial, is dead, or is shown to the court to be insane, or where an executor or administrator is a party in any suit on a contract of his testator or intestate, the other party shall not be admitted to testify in his own favor.” While this language is substantially different from the present Code section, the “other party” in that act and the “opposite party” in the present Code section have the same meaning. The case of
Brown v. Carroll,
supra, was cited with approval in
O’Brien v. Spalding,
In
Peretzman v. Simon,
Under the foregoing cases, we consider the law to be settled that the evidence excluded was not inadmissible on the basis of the caveatrix being the “opposite party” in a suit instituted by the personal representative of a deceased person under Code § 38-1603 (1). However, a part of the evidence excluded consisted of declarations of the testator, and we have the further question as to whether these declarations were incompetent as hearsay testimony.
Where a will is sought to be invalidated on the ground of fraud or undue influence, the declarations of the testator tending to show the state of the testаtor’s mind are admissible on
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these issues, but are not admissible for the purpose of showing the truth of the facts stated by him.
Dennis v. Weekes,
We have found no case directly in point with the present case on' the question of the admissibility of declarations of a testator on the issue of mistake of fact as to the conduct of an heir. In
Slaughter v. Heath,
4. In ground 10 of the amended motion for new trial it is contended that’ it was error to exclude а handwritten memorandum with wording which indicated that it had reference to an item in the will in which the testator bequeathed $10,000 to the Georgia Chiropractic Association for a student loan fund. This memorandum was- submitted to a witness for the propounder, Mrs. Bess Renouf, and she denied that she had written it. It is contended that this memorandum should have gone to the jury for the purpose of comparison with letters written by Mrs. Renouf so that they might determine that it was written by her and thus *35 impeach her testimony, and to show that at the time of the execution of the will the testator was unduly influenced by Mrs. Renouf.
The allegations of the caveat in regard to undue influence by Mrs. Renouf did not relate in any way to the bequest to the Georgia Chiropractic Association, and there was no evidence in the case to indicate that Mrs. Renouf had any interest in this bequest, or exercised any influence over the testator concerning it. Even if this witness had admitted that she had. written the memorandum, it would not have been germane to any issue in .the case. Since it was entirely irrelevant .and immaterial, the trial judge did not err in refusing to allow it to go .to the jury so that, if the jury should find that.the memorandum was in the handwriting of the witness, it would impeach her testimony that she had not written it. Compаre
Poland v. Osborne Lumber Co.,
5. In ground 11 an excerpt from the charge of the court is assigned as error, the first sentence being almost identical with the language of Code § 113-210 in regard to mistake of fact as to the existence or conduct of an heir at law of the testator. The latter part of this excerpt deals with monomania, and with mistake of fact in conjunction with monomania. This latter portion was requested by counsеl for the caveatrix. It is asserted that the first sentence and the latter portion are both correct as abstract principles of law, but that the two were so coupled together that the jury was instructed in effect that mistake of fact and monomania both had to exist before the jury would be authorized to find against the will. There is no merit.in this con-, tention.
6. In ground 12 it is asserted that the court erred in failing to charge that a mistake of fact on the part of the testator as to the existence or conduct of an heir at law, standing alone, wo.uld be sufficient to avoid a will as to that heir at law. It was not error, in the absence of a timely written request, to fail to charge this principle.
7. The question presented by grounds 13, 14 and 15 is whether or not the provisions of Code § 113-106 are applicable to the prеsent case, where the testator made only a nominal be *36 quest to his daughter. This Code section provides in part: “A testator, by his will may . . . bequeath his entire estate to strangers, to the exclusion of his wife and children, but in such case the will should be closely scrutinized, and upon the slightest evidence of aberration of intellect, or collusion or fraud, or any undue influence or unfair dealing, probate should bе refused.”
In
Deans v. Deans,
The exact question made by the present case was decided in
Beman v. Stembridge,
We therefore hold that the provisions of § 113-106 have no *37 application to the facts of the present case, and the trial judge properly refused the requests to charge made by the caveatrix as shown in grounds 13,14, and 15.
8. The general grounds of the motion for new trial are without merit.
Judgment reversed.