Gordon v. Gilmore

80 S.E. 1007, 141 Ga. 347, 1914 Ga. LEXIS 197

• Court: Supreme Court of Georgia
• Decided: February 19, 1914
• Status: Published

Opinion

Lumpkin, J.

On June 3, 1893, A. P. Stallings executed an instrument as his last will'and testament. On July 4, after his death, it was probated in common form and recorded. In 1909, Náomi J. Gordon, formerly Stallings, alleging herself to be the daughter of A. P. Stallings, deceased, and to be then 23 years of age, filed her petition to require the instrument to be propounded for probate in solemn form, and that it be set aside. She alleged that it was procured by force, fraud, and undue influence on the part of the mother of A. P. Stallings; that, on account of wounds and injuries, the purported testator was so enfeebled in mind and body at the time of the execution of the instrument as not to have testamentary capacity; and that the instrument was not executed as required by law, in that the alleged testator did not declare to the attesting witnesses that the paper was his last will and testament. The case was carried from the court of ordinary to the superior court by appeal. The jury found in. favor of the propounder of the will. The person who filed the petition to require the will to be propounded in solemn form, and set up objections to it in the nature of a caveat, moved for a new trial, which was refused, and she excepted.

The motion for a new trial is distributed among twenty-eight grounds. Some of them are imperfect, some of them are not verified by the presiding judge, and soine of them are so clearly without merit as to require no elaborate consideration. Some of them, however, are well founded. As there will be a new trial, the situation on which certain of these grounds rest can not arise again, such as that the court refused to reopen the ease for the admission of evidence which came to the knowledge of counsel after the evidence had been closed, and the subsequent urging of the same evidence as newly discovered. The headnotes deal with the substantial grounds of the motion, and cite authorities to sustain the positions announced in them, and they require no elaboration. The different views of the courts tin regard to impeaching a witness by proof of general character or character for veracity will be found discussed in 2 Wigmore on Evidence, 922. Prior to the adoption and taking effect of the first code (1863) this court seems to have sometimes recognized questions as to general character and sometimes as to character for veracity. Boswell v. Blackman, 12 Ga. 591; Taylor v. Smith, 16 Ga. 7; Stokes v. State, 18 Ga. 17; Smithwick v. Evans, 24 Ga. 461, 463. But in Barnwell v. Hannegan, supra, it was declared that, under the code, in seeking to impeach a witness on account of general bad character, the form of questions laid down in section 5882 should be followed. The charges on this subject, and also as to whether there was an obstruction which prevented the testator from seeing the witnesses sign by looking in that direction, without a change of his position, did not greatly vary from the requests. If it was necessary for him to be able to see without changing position, the reason for not changing (hypothetically, stated in the request as "his enfeebled or painful condition) would not seem to seriously matter. But if the evidence on another trial authorizes the charge in the language of the request, and it is again requested, it may be best to give it as requested. Judgment reversed.

All the Justices concur.