Credille v. Credille
| Decision Date | 03 August 1905 |
| Citation | 51 S.E. 628,123 Ga. 673 |
| Parties | CREDILLE et al. v. CREDILLE et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Upon the trial before a jury of an issue of devisavit vel non when in the paper propounded as the will the alleged testator has not left his property to strangers, but to one of his sons and such son's wife and children, the principle laid down in the latter clause of section 3258 of the Civil Code of 1895 is not applicable, and it is erroneous to give it in charge.
Upon the trial of such an issue the burden in the first instance is upon the propounder of the alleged will to make out a prima facie case by showing the factum of the will, and that at the time of its execution the testator apparently had sufficient mental capacity to make it, and, in making it acted freely and voluntarily. When this is done, the burden of proof shifts to the caveators.
Declarations of the testator, made within a few months after the date when the alleged will purports to have been executed, to the effect that he had not made a will, and that, if he had signed a paper purporting to be one, he did not know what he was doing, are admissible in evidence, not as evidence of the truth of the facts so stated, nor as evidence that any fraud was practiced upon him or any undue influence exerted over him in the matter, nor as evidence that he had revoked the will, but simply for the purpose of showing the state of his mind when the paper purporting to be his will was executed and whether or not he 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.
Error from Superior Court, Greene County; H. G. Lewis, Judge.
Action by A. A. Credille and others against W. F. Credille executor, and others. Judgment for plaintiffs, and defendants bring error. Reversed.
Saml. H. Sibley and Jas. B. & Noel P. Park, for plaintiffs in error.
James Davison, for defendants in error.
Reuben A. Credille died September 8, 1902, aged 76 years, leaving as his next of kin four sons and two daughters, all of age. On the 10th of October thereafter a paper purporting to be his last will and testament was probated in common form by his son W. Florence Credille, the date of its execution being February 27, 1902. In it the testator gave the bulk of his property, consisting of his old homestead of 650 acres of land, to this son, his wife and children. He gave nothing to his other children, except to one other son, to whom he bequeathed a feather bed and pillows. W. Florence Credille was named as sole executor in this instrument. Some months after the probate the other three sons and one of the daughters of the testator brought a petition in the court of ordinary to set aside and cancel this will against W. Florence Credille, as executor and as an individual, and his wife, Mrs. Annie Credille, and their seven minor children, naming them. In the petition it was charged that at the time the alleged will purported to have been executed Reuben A. Credille was paralyzed, and was totally lacking in capacity, both mentally and physically, to make and execute a will; that at the date of the paper purporting to be his will he was sick and in bed at the home of W. Florence Credille, and entirely under his influence; that if he signed such paper at all he was moved thereto by undue influence exerted over him by said W. Florence Credille; that if he signed said will it was not his will, because fraud was practiced upon him, by which he was made to believe that he was signing an entirely different instrument, and that the instrument probated was a paper of which the deceased knew nothing; and that this imposition was practiced upon him by W. Florence Credille. W. Florence Credille was appointed guardian ad litem for his children, and the defendants answered, denying the charges of the petition, and alleging that at the date of the will the testator was of sound mind and disposing memory and fully capacitated to make a will, and did make the will in question uninfluenced by any of the defendants, or by any other person, and of his own free will and mind. The case thus made was appealed by consent from the court of ordinary to the superior court, where it was tried, the trial resulting in a verdict and judgment in favor of the caveators and setting aside the will. The defendants moved for a new trial, which was refused, and they excepted.
1. Upon the trial the court gave section 3258 of the Civil Code of 1895 in charge to the jury. That section reads as follows "A testator, by his will, may make any disposition of his property not inconsistent with the laws or contrary to the policy of the state; he may bequeath his entire estate to strangers, to the exclusion of his wife and children, but in such case the will should be closely scrutinized, and, upon...
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