16 S.E.2d 544 | Ga. | 1941
The ruling of this court upon a former appearance of this case (
In the second special ground of the motion for a new trial under consideration on the former appearance of the case complaint was made that the court erred in submitting to the jury the question whether the paper was properly executed as required by law, the movant contending "that there was no evidence upon which the jury could predicate a verdict that the paper was not executed as required by law," and therefore that the caveators were given the benefit of a theory to which they were not entitled under the evidence. After stating the principle of law that the propounder of the alleged will has the burden, in the first instance, of making out a prima facie case, by showing the factum of the will and that at the time of its execution the testator apparently had sufficient mental capacity to make it, and in making it acted freely and voluntarily, this court said: "Considering this principle in connection with the pleadings and the evidence, the judge did not err" in giving the charge complained of. By making this decision this court necessarily determined that the jury would have been authorized to render a verdict for the caveators on the issue of the proper execution of the will. It is error to give in charge a contention of a party not supported by evidence. Hixon v. Myers,
It is well settled that a decision of this court becomes the law of the case, and can not thereafter, upon a subsequent appeal of the same case, be modified or overruled. Gray v. Conyers,
Affirmed. All the Justices concur.