Walton v. Twiggs

91 Ga. 90 | Ga. | 1892

E. H. Walton had two children by his first wife, the daughter of Mrs. Twiggs. The first wife having died, he married again. After his death Elizabeth Walton, his mother, applied for letters of guardianship of the two children, to which application a caveat was filed by Mrs. Twiggs. The case was appealed by consent to the superior court, where there was a verdict for the caveator. The applicant moved for a new trial, which motion was overruled, and she excepted. The motion contains, beside the general grounds, the following:

1. The court refused to allow one of the minors, who was shown to be twelve years of age, to answer the question, with which of her two grandmothers she preferred to live and which she preferred as guardian, the applicant proposing to prove that she preferred to live with the applicant and preferred her as guardian. The court ruled that this testimony was inadmissible, the child not being fourteen years of age; and refused to allow a witness to testify that both of the children, prior to the institution of this litigation, had expressed to him a preference to live with Mrs. Walton, and for her to be their guardian.

2. The court erred in charging the jury: “The law is so jealous of the rights of children in this regard, that the wishes of parents or relatives may be disregarded when their interests are at stake. In a contest for guardianship of children, if the wishes of deceased parents conflict with whatwould.be the real interest of the children, the jury may disregard the testimony and give same no weight, but on the contrary, when the wishes of parents are consistent with the best interest of the children, then such may be considered as valuable testimony in determining the guardianship of the children, and may control the jury in making up their verdict. In determining the best interest of the children, you may look to the affection the parties bear to the children, their happiness and their present and future welfare. If you should believe from the evidence that both of the grandmothers are affectionate, love the children ancl have their welfare and best interest at stake, then look to the evidence to see who is best qualified to take charge of, rear and educate the children, and which party could best manage their property. If both parties are equally capacitated in a moral sense to rear and train the children, then you may look to the question as to which party is best able in a-monetary sense to care for and take charge of them. One may have more means than another, and that fact alone should not control the selection of a guardian; but when all things are equal, capacity to confer the greatest benefits to the children should be looked to by the jury in determining the question of guardianship.”

J. R. Lamar, for plaintiff in error. J. C. C. Black and Twiggs & Yerdery, contra.

8. The court allowed the caveator to introduce in evidence the letters written by her to the second Mrs. E.- H. Walton, the same being correspondence with a person not a party to the suit and not competent to bind or in any way affect the rights of the applicant, it appearing that the caveator was present in court and able to testify in person. Other than as above may appear, it is not stated in this ground what objection was made to this evidence when offered.