Baumbach v. Dickens
| Decision Date | 10 January 1958 |
| Docket Number | No. 19899,19899 |
| Citation | 213 Ga. 745,101 S.E.2d 702 |
| Parties | Mrs. Claude BAUMBACH v. H. V. DICKENS, Sr., et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Evidence is not rendered noncumulative, so as to afford a basis for demanding a new trial on the ground of newly discovered evidence, merely because it is to be furnished by a stranger to the litigation upon a matter otherwise covered by the testimony of interested parties.
2. The verdict of the jury in favor of the caveators is supported by the evidence, and it was not error, for any of the reasons assigned, to deny the motion for a new trial.
Grady L. Randolph, Joseph B. Kilbride, Atlanta, for plaintiff in error.
Norman H. Fudge, Atlanta, for defendants in error.
The judgment under review is one denying a motion for a new trial in a proceeding to probate in solemn form the alleged will of Helen Dickens, wherein the jury returned a verdict in favor of the caveators and a judgment was entered denying probate.
1. The sole ground of the caveat filed by the heirs of Helen Dickens was that she did not sign or execute the document propounded as her will, and that which purports to be her signature on the document was and is a forgery. The paper offered as her will purports to have been signed by 'Mrs. Helen Dickens' and witnessed by Della Sherwood, W. E. Gresley, and Lillian Renzella. On the trial, the propounder, Mrs. Claude Baumbach, testified that she was the mother of Mrs. Dickens; that at Mrs. Dickens' request and dictation, she wrote the will offered for probate and was present when Mrs. Dickens signed the paper in the presence of the named witnesses, who signed the purported will in her presence and in the presence of each other. None of the alleged witnesses testified on the trial There was evidence that Della Sherwood, a sister of Mrs. Dickens, was dead; that Lillian Renzella, also a sister of Mrs. Dickens, resided in Detroit, Michigan, and was ill (no reason was given why her deposition was not procured); and that the address of W. E. Gresley was unknown. The caveators introduced some 14 documents, executed between 1946 and 1951, which were identified as bearing the signature of Mrs. Dickens. Two of Mrs. Dickens' children and a son-in-law testified that they were familiar with her handwriting, and that the signature of their mother on the purported will was not in her handwriting. Two handwriting experts testified that, in comparing the signatures of Mrs. Dickens on the documents introduced in evidence with the writing of her name in the purported will, they were of the opinion that the signatures were not written by the same person, one of them testifying that the name 'Mrs. Helen Dickens' on the purported will had the appearance of being a carbon copy, and that the signatures of two of the witnesses had the appearance of being traced.
The only special ground of the motion for new trial is that, since the trial, new and material facts have been discovered that would, on another trial, produce a different result favorable to the propounder. The alleged newly discovered evidence was that one W. E. Gresley, one of the subscribing witnesses to the purported will, had been located in Springfield, Massachusetts and that he would testify that he was present at the time the purported will was executed, that he witnessed the signing of the will by Mrs. Dickens and by the two other witnesses, and that he signed the paper as a witness.
This ground of the motion, as to content and form, complies with the provisions of Code, §§ 70-204, 70-205, and the sole question is whether or not the newly discovered evidence is merely cumulative in its character. Counsel for the propounder argues that, since on the trial the only witness who testified as to the actual execution of the alleged will was the propounder, who was interested as a party and as a legatee of her husband, a...
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Wesleyan College v. Weber, No. A99A0419
...Cumulative evidence is evidence tending to establish a fact in relation to which there was evidence at trial. Baumbach v. Dickens, 213 Ga. 745, 746-747(1), 101 S.E.2d 702 (1958); Distrib. Concepts Co. v. Hunt, 221 Ga.App. 449, 451(2), 471 S.E.2d 539 (1996). Johansen's testimony is cumulativ......
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Heard v. Lovett
...to believe this testimony and, based thereon, to find that the proffered will was a forgery. See generally Baumbach v. Dickens, 213 Ga. 745(2), 101 S.E.2d 702 (1958). Thus, as against a general grounds objection, the evidence was sufficient to support the probate court's 2. However, Propoun......
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Cantrell v. Red Wing Rollerway, Inc., 74697
...Ga. 400, 405, 34 S.E.2d 454. The trial court's decision will not be disturbed absent manifest abuse of discretion. Baumbach v. Dickens, 213 Ga. 745, 746, 101 S.E.2d 702. The six bases for the grant of a new trial on newly discovered evidence are well known: (1) that the evidence has come to......
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Distribution Concepts Co. v. Hunt, A96A0296
...[employee] and to the discredit of the [employer], it is cumulative and not cause for a new [hearing]. [Cits.]" Baumbach v. Dickens, 213 Ga. 745, 747(1), 101 S.E.2d 702 (1958). In this case, McBride's proffered testimony that Hunt told him and Glisson that he hurt his back is purely cumulat......