144 Ga. 63 | Ga. | 1915
A will was offered for probate in solemn form. A caveat was filed on the following grounds: (a) The testatrix
“I, Mattie-Thomas, daughter of Thomas G. and Elizabeth McFarland, being of sound and disposing memory, do make this my last will and testament. After paying all my debts, I give my property as follows:
“All my interest in my father’s estate on Lookout Mountain,' including my individual interest in said lands and also all bequeathed to me there, including the one thousand dollars, I give and bequeath to my executor, to use in building a church here, in memory of my father and mother. Said church to belong to the M. E. Church South. I also give the lot belonging to me on the N. E. corner of McFarland Avenue and Lake Avenue, or street, to the M. E. Church South for a home to be built there as a parsonage.
“I give to John M. McFarland, my brother, the house (dwelling) I have built in the Apple Orchard Block, and the lot on which it is built, and all the lots I own in Apple Orchard Block; also my interest in the Lake and the lands adjoining the Lake, running from Lake Avenue south along McFarland Avenue (Craw-fish Spring Boad) to my south line and thence east to the lower side of my orchard that lies on the west side of Missionary Bidge, thence along the lower side of said orchard, running in a northcrnly direction to said J. M. McFarland land.
“To my brother, J. Anderson McFarland, I give two hundred dollars.
“To my husband, A. B. Thomas, I give twenty-five ($25.00) dollars, to make this will binding and legal'; and I do not want him to have anything more in any way to me belonging, because of his continual unkindness to me.
“To my sister, Elizabeth Morrison, I give all my personal prop
It was shown, at the trial, that two of the subscribing witnesses were dead. Their signatures were proved by the surviving witness, who testified by interrogatories to the effect that the will was signed in the presence of all the witnesses, who also signed in the presence of the testatrix and in the presence of each other, and that all of the witnesses were shown by the testatrix “where to write” their names. The witness also testified: “Her ability to make a will is not considered by me in making my answers.” Another witness testified that at the time of her death the testatrix was residing at her home, and the witness and his wife were living with her. Some time before she died she told witness that “she had some valuable papers in her desk, and, if anything should happen, for me to get them; said she ought to have them in the bank in her deposit box. . . After her death I got them out. I have seen the papers you now exhibit to me. . . Saw them after her death in her desk. They were all in a bunch, and I got the whole bunch and found this paper [the will] you exhibit among them. . . The will is in Mrs. Thomas’s handwriting.” On cross-examination the witness testified that before the death of testatrix he looked after some of her business, and Foster McFarland, one of the caveators, who was the brother of testatrix, looked after most of her business. Testatrix “told me the reason she would not turn the whole business over to me, said it seemed everybody was down on Foster, and she had plenty to live on, and let him go ahead and collect the rent and keep account of it.” Other than inferences that might be drawn from the foregoing, there was no evidence as to the mental condition of the testatrix at the time of signing the will. The burden of the evidence was as to the mental condition of one of the attesting witnesses, who it was urged had not sufficient mental capacity to become a competent witness. The jury returned a verdict setting up and establishing the will. The caveators made a motion for new trial, on the grounds that the verdict was contrary to law and to the
Judgment affirmed.