Purser v. McNair

Hines, J. (After stating the foregoing facts.) 1. Counsel for plaintiffs in error insist only on one ground of the motion for new trial; and that ground complains of the refusal of the court to permit three witnesses to testify that the testatrix made, subsequently to May 4, 1916, the statement that “ she had made no will and had made no deed.” Counsel for the propounder objected to this evidence as being inadmissible. The court sustained this objection and rejected this testimony. Declarations of a testatrix, made shortly after the date when her alleged will purports to have been executed, to the effect that she had not made a will, are admissible in evidence on the trial of a caveat-embracing, among other grounds, that she was not mentally capable of making a will, and that the same had been' procured by the undue influence of the nominated executor, who is likewise a legatee under the purported will, not as evidence of the truth of the fact so stated, nor as evidence of any undue influence exerted over her in the matter by the nominated executor, but solely for the purpose of showing the state of her mind when the instrument was executed, and as throwing light upon the question whether or not she then had sufficient mental capacity to make a will, or was then in such a mental condition as to be easily and unduly influenced by another. Williamson v. Habers, 14 Ga. 286; Dennis v. Weekes, 51 Ga. 24 (6); Mallery v. Young, 94 Ga. 804 (22 S. E. 142); Gredille v. Credille, 123 Ga. 673 (3) (51 S. E. 628, 107 Am. St. R. 157). The alleged will was dated May 4, 1916. The testatrix was adjudged a lunatic on February 14, 1917, and committed to the State insane asylum, where she died July 6, 1918. The exact time when these excluded declarations were made is not shown, except that they were made subsequently to the date of the will. They might have been made as much as two years after the execution of this [411] instrument. They might have been made at a much earlier period. If made prior to the adjudication of the testatrix as a lunatic, they would be of greater weight than if made thereafter. If made before this adjudication, they would have had to be made within a little over nine months after the making- of the alleged will. In cases of doubt as to the admissibility of evidence, the current of authority in this State is to admit it, and leave its weight and effect to be determined by the jury. Augusta Factory v. Barnes, 72 Ga. 217 (5-a) (53 Am. R. 838); Dalton v. Drake, 75 Ga. 115; Central R. v. Smith, 76 Ga. 209; Savannah etc. Ry. Co. v. Flannagan, 82 Ga. 579 (3) (9 S. E. 471, 14 Am. St. R. 183); Goodman v. State, 122 Ga. 111, 118 (49 S. E. 922). Under this liberal rule as to the admission of evidence, we think that the court erred in rejecting this testimony. The able trial judge very candidly states, in his opinion overruling the motion for new trial, that if his attention had been called to the Credille case he would probably have admitted this testimony. While we think the rejection of this testimony was error, we do not think the error is of sufficient importance to require the grant of a new trial. The superior courts may grant new trials in all cases when any material evidence is illegally withheld from the jury against the demand of the applicant. Civil Code, § 6083. The attention of the court was not called to the purpose for which these declarations were offered. Jeter v. Jones, 135 Ga. 22 (2-a) (68 S. E. 787). There is no evidence of any undue influence exercised by the executor toward influencing the testatrix in making this will. We have set out in full, in the statement of facts, the evidence produced by both sides touching the mental capacity of the testatrix. The evidence for the caveators makes a weak case as to her mental incapacity at the time when this will was executed. The slight error in rejecting this evidence may be regarded as immaterial, where the verdict is undoubtedly right, and where the result ought fairly to be the same if the rejected evidence had been admitted. Lewis v. Adams, 61 Ga. 559. 2. The verdict is strongly supported by the evidence. Besides the general grounds, there is one other ground besides the one above considered. Counsel for the plaintiffs in error refer only to the latter ground in their brief; and do not refer to any of the [412] other grounds. For this reason we deal only with the ground considered in the first division of this opinion. Judgment affirmed. All the Justices concur.