75 Ga. 477 | Ga. | 1886
The executor of the last will and testament of Mary Ann Smith propounded it for probate in solemn form, when G. E. Smith, one of her heirs at law, appeared and caveated it, principally upon the ground that testatrix was not of sound and disposing mind and memory; that she was old and feeble in body,—was afflicted with paralysis, which affected her mind to such an extent that she was unable to resist importunity; that the paper propounded was not her free and voluntary act, and was, consequently, not her will, but the same was obtained by the undue influence of the executor, James R. Smith and his coadjutors, and that she was induced to make it by their fraudulent representations and practices in reference to the conduct of caveator-toward her. The will was set up in the court of ordinary,
], 2, 3. The three first grounds of the motion are, that the verdict is contrary to law and evidence, decidedly and strongly against the weight of evidence, against the principles of justice, and is without evidence to support it.
An inspection of the record will show that the complaint of its being against the weight of evidence and without evidence to support it, is not well founded; there is more evidence in favor of the verdict than against it, both as to th'e capacity of the testatrix to make a will, and as to the influence and practices to which resort was had to induce her to execute this particular paper. Three of the four attesting witnesses to the will, one of whom was the scrivener, swore that she was not of sound and disposing mind and memory, the other that she was. These three were supported in their opinion by other witnesses, who, as well as themselves, state the grounds and reasons for their opinion, while the other attesting witness was corroborated in his opinion, for which he also gave the reasons, by nearly an equal number of witnesses, who likewise deposed to the facts on which they founded their opinion. The testatrix was seventy years of age when stricken with paralysis, which rendered her physically helpless, and greatly impaired, though it did not destroy her mind. The will was made after the first stroke, and before others succeeded, from the effects of which she died in a few weeks. The caveator, who had previously lived with her, was temporarily absent at the inception of the disease; in his absence she was visited by Alexander, a son-in-law, and his wife, who arranged with the propounder to remove her to his house, where this will was made shortly after her arrival.
4. The objection to the charge in relation to the elements that go to make up undue influence, fraud, duress, etc., viz., that there was no evidence on which to found it, is, as we think, wholly untenable. There is evidence, as we have shown, from which the jury was authorized to infer both undue influence and fraud in the procurement of this instrument.
5. Nor are we able to perceive that the court erred by requiring the mental capacity of the testatrix to be proved as alleged, by such a degree of testimony as would authorize a conviction in criminal cases. No such rule is laid down in express terms, nor can it be inferred from the instructions on that head. The full charge, which is sent up in the record, is a model of perspicuity, clearness and fairness upon these several issues, and is confined to the facts in evidence. It does not deal with issues other than those made by the pleadings and proof, and is not amenable to any of the objections made in the remaining grounds of the motion for a new trial. -■ We agree with the presiding judge in the conclusion he has reached, that the verdict is proper and should not be disturbed.
Judgment affirmed.