112 Ga. 639 | Ga. | 1901
Lead Opinion
Mrs. Emma Whedon, of Louisville, Ky., filed with the ordinary of Pike county a petition for probate of the will of Lucy A. Seamans. This will was executed in Kentucky on October 23, 1894, and was duly probated there on August 15, 1895, and admitted to record according to the laws of Kentucky. Mrs. Whedon was nominated executrix of the will, and had qualified as such in the State of Kentucky. The testatrix owned certain property, both real and personal, in Pike county, Georgia; and the executrix filed a petition with the ordinary of Pike county, asking that the will be probated and admitted to record in his court, as provided in section 4 of the act of the General Assembly of Georgia approved December 17, 1894 (Acts 1894, p. 102), and that letters testamentary be granted to her. To this application Herbert A. Knight filed a caveat. It seems he was nominated executor of a will made by Lucy A. Seamans before she left Georgia for Kentucky. One ground of the caveat was that Lucy A. Seamans, at the time of the execution of said will, was incompetent to make a will, and did not at said time make a legal will-that could be admitted to probate in the county of Pike, the pretended will not
On the trial of this case there were quite a number of witnesses introduced on behalf of the propounder, all of whom testified to the perfect sanity of Mrs. Seamans during her whole stay of eight months in Kentucky, with the possible exception of the day before her death, when she became unconscious; that her mind was clear; that she was intelligent; and that she had repeatedly declared that Kentucky was her home and' announced her intention to reside with her sister during the remainder of her life. It seems that, soon after reaching
After a careful review of this case, we discover that the court failed to give, in the body of the charge, any instructions with reference to Mrs. Seamans’s manifesting a purpose or intention to change her residence to the domicile of her sister after going to her home in Louisville. We fail to find in the record any evidence
One ground in the motion for a new trial is, that the court erred in failing, to charge the jury, as part of the general charge, “that if Mrs. Seamans, the testatrix, went to Kentucky on a visit, and after her arrival there decided to make that her domicile, and there so expressed her intention 'to make Kentucky her home or domicile, then that would have made her a resident of Kentucky, provided she had sufficient mental capacity to form an intention of changing her residence.” Complaint is also made that in his general charge the judge specially instructed the jury as follows: “ I charge you that, in order to constitute a change of domicile in this case, the evidence must show that Mrs. Seamans changed her residence, that is, removed from Georgia to Kentucky, with the avowed intention of making the latter place her home or her domicile. By avowed intention I mean that it was her express intention or declaration on her part, — that it was her purpose and intention to make' that her home or constitute that her domicile. If you believe from the evidence that she did this, it is your duty to find for the propounder. If you believe that she did not, then find for the caveators.” We have carefully read the entire charge of the court, and in the general charge the jury was really limited to the single issue as to whether or not the testatrix left Georgia with mind sufficient to change her residence, and whether or not it was her declared intention to change it before she. left this State. As above indicated, there was conflict in the testimony on this point. On the other point, as to whether, after leaving Georgia, she had while in Kentucky, and knowing what she did, resolved to live with her sister in Louisville, the evidence was overwhelming, and nothing related by the witnesses in Georgia was in conflict with the positive and direct
After a careful review of the testimony; we are convinced that a very weak and unsatisfactory case in support of this verdict was made out. Giving the correct theory of the propounder upon the request of her counsel at the- conclusion of the charge and in a single sentence, without explaining the manifest contradiction between it and what had been stated several times in the course of the general charge, was clearly not treating the propounder fairly. As Chief Justice Simmons said in the case of Seymour v. State, 102 Ga. 806: “In view, therefore, of the fact that the main defense relied upon was not presented to the jury at the proper time and in proper connection, and being apprehensive that, for this reason, the jury may not have given the evidence tending to show the good character of the accused the full weight and consideration it was entitled to receive, we feel constrained to order a new trial.” See also the opinion of Presiding Justice Lumpkin in the case of Smith v. State, 109 Ga. 484. We think the principle advocated and dis
Judgment reversed.
Dissenting Opinion
dissenting.