Duncan v. Coleman

144 S.E. 18, 166 Ga. 632, 1928 Ga. LEXIS 365

Opinion

Gilbert, J.

1. Where error is assigned on a refusal of the court to allow a witness on direct examination to answer a question, and it is not stated what the answer would have been, no point is raised for the consideration of this court. McElwaney v. MacDiarmid, 131 Ga. 97 (2a) (62 S. E. 20) ; Wyche v. Bank of Campbell County, 161 Ga. 329 (6) (130 S. E. 566), and cit.; Eliopolo v. Eicholz, 161 Ga. 823 (3) (131 S. E. 896).

2. Error is assigned on the rejection of evidence, on the ground that the court erroneously ruled that the evidence offered was a conclusion. The evidence rejected was the opinion of the witness that the testatrix “did not know the children of her dead sons and daughter.” Opinion evidence is admissible on the question of mental capacity; but the mere opinion here expressed by the witness is not of such materiality that the ruling thereon would require a reversal, even though it were admissible.

No. 6478. July 12, 1928. G. B. Walker, Mozley & Gann, and II. B. Moss, for plaintiffs in error. Morris, Hcmkins & Wallace, contra.

3. On the issue as to whether the verdict is demanded by the evidence the entire court of six Justices are equally divided in opinion, Russell, C. J., Beck, P. J., and Hines, J., being of the opinion that the evidence is not sufficient, and Atkinson, Hill, and Gilbert, JJ., being of the contrary opinion; and the judgment of the trial court is affirmed by operation of law on this question.

Judgment affirmed.

All the Justices concur, except as slated in the third headnote.