22 S.E.2d 51 | Ga. | 1942
Where the subscribing witnesses testified that the will was executed in proper form, that it was read to the testatrix in their presence, and that the testatrix was of sound and disposing mind and memory, and upon the sole issue of mental capacity of the testatrix the only evidence relied upon to controvert their testimony was from a witness testifying about a general period of time (of several weeks) including the date of the execution of the will, but who did not purport to know or testify about her mental condition at the time the will was executed, a verdict probating the will was demanded.
The three subscribing witnesses, besides formal proof, each testified that the paper was the last will of Annie Roan and contained her signature by her mark, and their signatures as witnesses; that Joe Robinson, one of the subscribing witnesses, read it to Annie Roan in her room before she signed it in the presence of all the witnesses; that although the testatrix was sick and propped up in the bed she was in her right mind and knew what she was doing when the will was read and when she signed; and that Annie Roan told them, immediately before she signed, that was the way she wanted her property to go. All of these witnesses testified that they lived near Annie Roan; two of them had known her ten years or more, and the third had known her all his life. 1. The question for decision is whether the evidence was sufficient to authorize the verdict sustaining the caveat where the controlling contested issue was the mental capacity of the alleged testatrix to make the will. The propounder made out a prima facie case by testimony of the subscribing witnesses to the instrument, and presented proof that at the time the decedent executed the same she was of sound mind. On the contention that the alleged testatrix was mentally incapacitated to make the will the caveator offered only one witness, whose testimony related to the period between the time she became sick and her death several weeks later, sometime during which period the instrument was executed. The caveator's witness, after stating that he was a roomer in the decedent's home, testified as follows: "When I come home she was washing clothes, and she said she felt bad, and come over and fell down on the porch, and she was sick from then until she died. She was in bad condition when the women carried her in the house. She continued to grow worse so that she did not know what she was doing. . . I saw her daily and she grew steadily worse day by day. I would speak to her every day, and she did not answer, but only lay in bed. I saw her daily from the time she got ill until she died, and during that period she was *505 not in a condition to know what she was doing, or to make a will." There was no other proof on the subject, and no suggestion of mental weakness on the part of the testatrix, except as might be drawn from the foregoing.
The testimony of the witness that the testatrix "was not in a condition . . to make a will" states a legal conclusion, and, although admitted without objection, can not be considered in support of the verdict, since it is entirely without probative value. In Smoot v. Alexander,
In Peavey v. Crawford,
In the case now before us the only evidence relied upon to break down the will was in substantially the same language as used by the witness in the Peavey case, supra. The witness testified to no conversations or other conduct or circumstances which would show *508 mental incapacity at the time the will was executed. This is not to hold that a witness must have been present at the execution of the will, to give reliable evidence on such an issue, but that the evidence must show that he knew the mental condition at that time. Such was not the case here. The judgment overruling the motion for new trial must be
Reversed. All the Justices concur.