Credille v. Credille

• Decision Date: 15 July 1908
• Citation: 61 S.E. 1042,131 Ga. 40
• Parties: CREDILLE. v. CREDILLE et al.
• Court: Georgia Supreme Court

131 Ga. 40

61 S.E. 1042

CREDILLE.

v.CREDILLE et al.

Supreme Court of Georgia.

July 15, 1908.

1. Evidence — Opinion Evidence—Capacity to Dictate a Will.

Where one issue was whether a decedent had testamentary capacity, and a witness had testified that he lived not far from the decedent and went to his house often after the latter had been paralyzed, that the decedent was entirely helpless when the witness saw him, that he asked the time of night every four or five minutes, that his speech was a little affected, and his tongue seemed to be a little affected in talking— this was sufficient foundation on which the witness might express his opinion as to whether the decedent had capacity to talk and to dictate a will; testimony having been introduced to show that the alleged will was executed after the decedent had been stricken with paralysis, and there being some evidence to the effect that he dictated it.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 2242-2244, 2297.]

2. Wills—Annulment—Evidence—Admissibility.

The various letters, the exclusion of which from evidence formed the basis of complaint in several of the grounds of the motion for a new trial, were properly rejected.

3. Same—Instructions.

The charges to which exceptions were taken, on the ground that they were not authorized by the evidence, were not subject to that criticism.

4. Appeal and Error — Review—Questions op Fact.

The verdict was authorized by the evidence, and there was no error in overruling the motion for a new trial.

(Syllabus by the Court.)

Error from Superior Court, Greene County; H. G. Lewis, Judge.

Petition by A. A. Credille and others to set aside and cancel the will of Reuben A. Credille, deceased. Judgment for caveators, and Alice Credille, administratrix, brings error. Affirmed.

Saml. H. Sibley and Park & Park, for plaintiff in error.

Jas. Davison, for defendants in error.

LUMPKIN, J. A paper purporting to be the will of Reuben A. Credille, deceased, was probated in common form. Subsequently a petition was filed by four of the children of the testator to set aside and cancel the will. The case was appealed to the superior court, where a verdict was found in favor of the caveators and setting aside the will. A motion for a new trial was overruled, and the case was brought to this court, where the judgment was reversed because of an error in the charge of the court. 123 Ga. 673, 51 S. E. 628, 107 Am. St. Rep. 157. When the case was again tried, a similar verdict was again found by the jury. A motion for a new trial was made and overruled, and the losing party again excepted.

1. One ground of the motion for a new trial was that the court erred in admitting in evidence the answer of a witness to the following question: "Did he [the decedent] have capacity to talk and to dictate a will?" To this the witness answered: "I don't think he did." The objection was that this evidence was irrelevant, for the reason that the witness, not being an expert, had not given sufficient facts on which to base an opinion. The witness had stated that he lived about 2 1/2 miles from Reuben Credille, that he went over to the home of the latter often after he (Credille) was paralyzed, pretty soon afterwards, that Credille was entirely helpless when the witness was there, that every four or five minutes he would want to know what time of night it was, that his speech was a little affected, and his tongue seemed to be a little affected in talking. The witness was then asked the question, and gave the answer to which objection was made. Where the question is one of opinion, a nonexpert witness may state the facts on which he bases it, and then state to the jury his opinion thus formed. It should appear that the opinion given is thus based, and what the facts were on which the witness predicated it. Cause and effect may be an inevitable sequence, but it does not follow that all sequence implies cause and effect. A witness may state that he has seen a man eating dinner, and he may also state afterwards that in his opinion the man was crazy; but this does not necessarily mean that the opinion of insanity was formed because the man ate dinner. He may have had many other reasons for so thinking which were entirely unknown to the jury. Where it is sought to have a nonexpert witness give his opinion formed from facts or observation, the proper practice is to let the witness testify to the facts and then state to the jury his opinion based upon those facts. In this manner the jury can determine what weight ought to be given to the opinion. If they are not informed as to the basis, they have no means for determining the proprietyof drawing such a conclusion from the premises on which it rests. In the illustration given above, if the witness should state to the jury that he thought a person crazy because he ate dinner, the jury would probably give but little weight to his opinion thus formed;...