Brooks v. Duffell

• Decision Date: 31 August 1857
• Parties: Jacob M. Brooks, caveator, plaintiff in error. vs. Nancy C. Duffell, propounder, defendant in error.
• Court: Georgia Supreme Court

23 Ga. 441

Jacob M. Brooks, caveator, plaintiff in error. vs. Nancy C. Duffell, propounder, defendant in error.

Supreme Court of the State of Georgia

AUGUST TERM, 1857.

Caveat to will, in Fayette Superior Court. Tried before Judge Bull, at March Term, 1857.

A paper purporting to be the last will and testament of Thomas H. Duffell, deceased, was propounded for probate in solemn form of law, before the Ordinary of Fayette county, by the executrix, Nancy C. Duffell.

Jacob M. Brooks, who was the husband of Rachel L., a daughter of deceased, filed the following caveat against admitting said will to probate and record, to wit:

1st. For that said deceased, at the time of making said pretended will, was not of sound and disposing mind and memory.

2d. For that said deceased did not execute said pretended will freely and voluntarily, and of his own accord.

3d. For that said deceased was fraudulently persuaded, and unduly interfered with and importuned by his wife, the principal legatee and executrix of said pretended will; dictating its provisions, and constraining deceased to make said pretended will; that he might thereby have some peace and quiet in his last sickness.

4th. For that the mind of deceased, at the time he executed said paper, was very weak and imbecile, and fraudulent practices were employed by his wife to induce him to make the unreasonable and unjust disposition of his property as contained in said will.

The Ordinary pronounced in favor of the paper propounded as the last will and testatment of Thomas H. Duffell, and admitted the same to probate, and the caveator appealed.

Brief of Evidence.

Varney A. Gaskill, one of the subscribing witnesses, testified that he saw Thomas H. Duffell execute the paper propounded, and that he signed it as a witness; that in his opinion, testator was of sound and disposing mind at the time; witness was sent for to write the will; when he got to testator's house he informed him that he had come to write his will; he took his seat by the side of the bed, and with his pencil, took down the items as testator gave them out to him, and he then went to the other side, and wrote out the will; that the items and bequests were all dictated by deceased, and the disposition of his property was in accordance with what deceased had some time before informed witness he intended as to the disposition of his estate;; deceased was loading his wagon, and in the act of removing to Alabama when he was taken sick.

Thomas C. Matthews, testified that he attested the will; that when he got to the house, Mr. Gaskill was writing the will; when it was prepared, deceased was raised up, and was unable to write his name; his wife inquired if it would do for him to make his mark, on some hesitation, Mr. Gaskill decided that it would, and held deceased's hand, and assisted him to make his mark; witness took the will when he went to sign it, and stepped to the door for the purpose of the light, as it was late in the evening, and rather dark in the house, and signed the will as a witness; deceased was in his bed in the corner of the house; the door-shutter opening back against the end or head of the bed; that the shutter of the door, from the position of deceased's head, would have prevented him from seeing witness sign the will; deceased was very sick, and did not notice anything that was going on; never spoke from the time witness got to his house, except when he was raised to execute the will, said, "I can not" or "I can not write." After the will was executed and attested, and witness and Mr. Brassell, another witness, were in the act ofleaving the house, Mr. Gaskill spoke to deceased, and said, "I suppose, brother Duffell, this is your will, " holding it up in his hand; to which deceased replied, "whose? whom?" Witness was of opinion that testator was not of sound and disposing mind when he executed the will, or that he knew anything that was doing, in relation to his property.

John C. Brassell, testifies, that he attested the will; he was requested to go to the house of testator, by testator's son; when he got there, Mr. Gaskill was writing the will; testator was raised up in bed to sign the will, but was unable to do so; Mr. Gaskill, on being asked by testator's wife, if it would do for him to make his mark, stated that it would, and took hold of testator's hand or the pen, and assisted him to make his mark; the witnesses signed the will in the door for the benefit of the light, as it was late in the evening and somewhat dark in the room at the time witnesses were signing; testator was lying on his bed, situated in the corner of the house; his head at the end next the corner; the door-shutter opening back against the head of the bed; it might have been possible for testator to have seen the witnesses sign the will, but not in his actual position, and without changing his position; that he is of opinion, from the condition of testator, that he was not of sound and disposing mind at the time he executed the will; that he did not seem to notice or know anything that was going on; did not hear him speak during the time the will was preparing, or when it was executed.

Dr. P. H. Brassell, testifies, that he was the physician in attendance upon testator during his last sickness; his disease was pneumonia; testator's...