170 Ga. 788 | Ga. | 1930
J. H. B. Bea offered for probate an instrument purporting to be the will of his sister, Joanna Pursley, who, before her marriage to C. N. Pursley Sr., was Joanna Bhinehart. C. N. Pursley Jr. filed a caveat, alleging that Joanna Pursley died on January 10, 1928, never having had issue, leaving her husband, C. N. Pursley Sr. (who died after her death) as her sole heir at law, and as such entitled to her estate under the statute of distributions; that caveator was the son and the only heir at law of C. N. Pursley Sr., who inherited the entire estate of the testatrix; that the signature of testatrix to said instrument was forged; that the names of W. M. Eoberson W. W. Eoberson, and T. J. Edge, the persons signing said instrument as witnesses, were not signed by them or in the presence of or with the consent of Joanna Pursley; and that said paper was not the will of said Joanna Pursley but was a forged instrument.
On the trial the testimony offered in behalf of the propounder tended to show the following: The instrument offered for probate as the last will of Joanna Pursley was found, sometime after her death, among the papers of her nephew, W. M. Eoberson, who was one of the apparent witnesses to said instrument. At the time the will was offered for probate, the three persons who purported to be the attesting witnesses thereto were dead. Tom Edge, a son of T. J. Edge, was sworn as a witness by the propounder. This witness was about 12 years of age at the time of the alleged execution of the will. He testified that his father and the other two attesting witnesses went to the residence of Mrs. Bhinehart (Mrs. Joanna Pursley) in Chattooga County, some distance from the home of the witness, and of the attesting witnesses, for the purpose of doing some work on a gin, that he went with them, and that while at the home of Mrs. Bhinehart, and while he and the attesting witnesses were at the dinner-table, Mrs. Bhinehart said that she had a paper that she wanted them to witness, and brought it to the table, and they signed. This witness further testified: “What makes me remember it, Mr. Eoberson, that is Hncle Zip, says, Aunt Joe, there is no use in making a paper like that; you will outlive any of us/ They all signed the paper there. I seen W. M. Eoberson sign a paper that looked like that. I seen W. W. Eoberson make h'is mark. I saw my father sign that paper. I know my father’s signature. She gave that paper, after it was signed, to Button Eoberson and
The evideixee offered by the caveator teixded to establish the following : The instrument offered for probate had beeix changed by aix erasure of the date therein as originally written on the typewriter, and another date sixbstituted. The body of the instrument aixd the attestation clause recited the name of Mrs. Joaxxna Rhine-hart as the testatrix, while the signature was Joanna Pursley. Caveator offered the testimony of a number of witnesses, tending to show that the signature to the will was ixot the genuiixe signature of Joanna Pursley, and introduced iix evidence several of her genuiixe signatures for the purpose of comparison by the jury with the signature to the purported will; also, the testimony of George M. Clark, a handwriting expert, who, after giving his reasoixs, testified that iix his opinion the signature of Joaxxna Pursley to the purported will, and the signatures of the witnesses thereto, were forgeries; also, the testimony of several witnesses as to statements made by Mrs. Pursley during her lifetime, to the effect that she had not executed any will.
The jury returned a verdict in favor of the caveator. The propounder moved for a new trial upon the general grounds, and upon several special grouixds which are dealt with hereinafter.
The trial judge, over objection of propounder, permitted caveator to introduce the following evidence: W. C. Hatfield testified as follows: “She [Mrs. Joanna Pursley] said, ‘Everything I
We are confronted with the decision of this question: Were the post-testamentary declarations of an alleged testatrix, to the effect that she wanted her entire estate to go to her husband, that she had never made a will, and never would as long as she lived, and that there was no necessity of her making a will, as she had but one heir, who was her husband and who would take her estate, admissible upon the probate of an instrument offered as the jvill of such testatrix, by which she gave her estate to her brother and sisters to the exclusion of her husband, and to the probate of which a caveat was filed by the sole heir'of the husband, who died the same day, but shortly after the wife, upon the ground that the instrument offered for probate was not the will of the alleged testatrix, but was a forgery, upon which issue there was independent evidence both pro and con? Such post-testamentary declarations of the alleged testatrix are undoubtedly hearsay evidence, which does not derive its value from the credit of the witnesses, but rests mainly on the veracity and competency of other persons. It is generally without probative value. Eastlick v. So. Ry. Co., 116 Ga. 48 (42 S. E. 499); Tison v. State, 125 Ga. 7 (53 S. E. 809); Estill v. Citizens & So. Bank, 153 Ga. 618, 625 (113 S. E. 552). Its very nature shows its weakness, and it is admitted only in specified cases from necessity. Civil Code (1910), § 5762. This ex-
In Mallery v. Young, 94 Ga. 804 (22 S. E. 142), a will was contested upon the ground that the propounder and another had falsely and fraudulently represented to the testator that the caveatrix was not in fact his niece, and that by means of this fraud and deception the testator was induced to disinherit her, and bequeathed his estate to the propounder and such other person. There was no evidence whatever that any representations had ever been made, except the declarations of the testator himself. This court held that the caveat was not sustained, and that the verdict setting aside the will was without evidence to support it; that the declarations of the testator were admissible to show the state of his mind at the time of executing the will, but were not admissible for the purpose of showing that the facts stated by him were true. In Jones v. Grogan, 98 Ga. 552 (25 S. E. 590), it was said that “Declarations of a testator, apparently free and voluntary and not made under the restraint of another, tending to show that the paper propounded as his will was prepared in accordance with his wishes, and that he was satisfied with it, are, when the paper has been attacked on the ground that its execution was procured by undue influence, admissible in evidence to show that it was his true last will and testament; but his declarations to the contrary, for the purpose of invalidating the papers as a will, are not admissible.” In that case the declarations offered went to sustain the will, and were not offered for the purpose of invalidating the instrument offered for probate. It does not appear that any declarations were offered for the purpose of invalidating the paper. Furthermore it does not appear, if such declarations were offered, that there was no independent evidence tending to establish the facts alleged in such declarations. In that case the issue was one of undue influence. Where a will is contested upon the grounds that there was fraud in its procurement, or want of mental capacity to make it, or that it was procured by the exercise of undue influence on the maker, declarations of the testator tending to show
The cases just cited involved issues of fraud or undue influence in the procurement of the instrument propounded, or lack of mental capacity to execute the instrument. The case at bar involves the issue of the forgery or not of an instrument offered-for probate as the last will of a testatrix. The question is whether declarations of the alleged maker of the will that she had never executed any will were admissible in favor of the caveator, who in his caveat alleged that the instrument offered for probate was not the will of the alleged testatrix, but was a forgery. The propounder contends that such declarations of the alleged testatrix that she had never made a will were mere hearsay, and were not admissible under the rule which excludes hearsay evidence or any exception to that rule. So the controlling question in this case is, under what circumstances and for what purposes are the declarations of a testator admissible on the issue of forgery raised in the proceeding to probate an instrument at his last will? Are such declarations admissible at all upon the issue of the forgery of the instrument? If so, for what purpose ? On the admissibility of such declarations the decisions are in conflict. Some courts hold that such declarations are not admissible either to support or overthrow a will.
Probably the majority of the earlier cases are in harmony with Throckmorton v. Holt, supra, but it has been suggested that this is due to the fact of the prestige of the Supreme Court of the United States, which rendered the decision in that case. In the later cases the correctness of the rule laid down in that case has been questioned and repudiated. Now the weight and trend of the authorities are in favor of the admissibility of declarations of an alleged testator, both those made before and those made after the date of the purported will, on the issue of forgery of the will, where the issue is raised by other substantial evidence, and proof of the declarations is corroborative of other testimony. Turner v. Hand, 3 Wall. Jr. 88, Fed. Cas. No. 14,257; Alexander v. Alexander, 214 Ala. 291 (107 So. 835); Re Morrison, 198 Cal. 1 (242 Pac. 939); Re Thompson, 200 Cal. 410 (253 Pac. 697); Baird v. Shaffer, 101 Kan. 585 (L. R. A. 1918D, 638, 168 Pac. 836); Atherton v. Gaslin, 194 Ky. 460 (239 S. W. 771); Movant’s Succession, 45 La. Ann.
We think that the conclusion which we have reached is in full accord with the decisions of this court. In Patterson v. Hickey, supra, this court held that revocavit vel non is similar to the question of devisavit vel non. In that case, and in McIntyre v. McIntyre, supra, this court held that where the issue is revocavit vel non, the declarations of the testator are admissible, though made between the making of the will and the death of the testator. In Patterson v. Hickey, this court adopted the dissenting opinion of Justices Spencer and Tompkins in the case of Jackson v. Kniffen, supra. Judge Lumpkin likewise quoted with approval from the decision in Reel v. Reel, 1 Hawks (N. C.), 248 (9 Am. D. 632), as follows: “To reject the declarations of the only person having
In the second special ground of his motion for new trial the propounder asserts that the court erred in giving in charge to the jury section -3846 of the Civil Code of this State, which declares that “All wills . . disposing of realty or personalty-must be in writing signed by the party making the same, or by some other person in his presence, and by his express direction, and shall be attested and subscribed in the presence of the testator by three or more competent witnesses,” and in immediately thereafter charging the jury: “ Consequently, gentlemen, in this case, the burden is upon the propounder to prove the execution of the will offered in accordance with the law and in accordance with the provisions of this section,” without going further and -instructing the jury in effect, that “after the propounder has shown, if he has in this case,
In the third special ground the movant insists that the court erred in giving in charge to the jury section 5834'of the Civil Code of 1910, which is as follows: "Whenever the subscribing witnesses to an instrument in Writing are dead, insane, incompetent, or inaccessible, or, being produced, do not recollect the transaction, then proof of the actual signing by, or of the handwriting of, the alleged maker shall be received as primary evidence of the fact of execution; and if such evidence be not attainable, the court may admit evidence of the subscribing witnesses, or other secondary evidence, to establish such fact of execution,” and in immediately thereafter instructing the jury as follows: "Gentlemen, you will readily see that a portion of this section of the code could have no application to the issue or evidence in this case, but I charge you to apply so much of it as you may find applicable to the evidence which has been submitted.” The error assigned is that the court should have instructed the jury what portions of this section were applicable, and what were not, and should not have left to the j ary the determination of what portions of the charge given were applicable; that the entire section was applicable in this case; and that the instruction had the effect of eliminating movant’s contention that the
Movant insists that the court erred in charging the jury as follows: “You may if you see fit, and, as stated, there has been allowed to go to you for that comparison the signatures.to certain writings with the signatures to the will, for your determination, if you so see fit, as to whether or not the signatures and mark set forth in the purported will are in truth and in fact the genuine signatures and mark of the testatrix or the subscribing witnesses.” Movant insists that this instruction was erroneous for the reasons that (a) it was confusing, and did not correctly state the law governing in such matters; and (b) it instructed the jury that they might or might not consider the evidence referred to in this instruction, and could determine the issue without regard to such testimony and independently thereof. After admitting evidence pertinent to an issue in a cause, it was error for the trial judge to instruct the jury that they could or could not consider such' evidence as they saw fit.
As we grant a new trial on account of the errors dealt with in the third and fourth divisions of this opinion, we do not pass upon a complaint that one of the jurors who tried the case was not fair and impartial, or upon the sufficiency of the evidence to support the verdict.
Judgment reversed.