Dennis v. Weekes

• Decision Date: 31 July 1872
• Citation: 46 Ga. 515
• Parties: WILLIAM T. DENNIS et al., caveators, plaintiffs in error. v. WILLIAM J. WEEKES, propounder, defendant in error.*
• Court: Georgia Supreme Court

46 Ga. 515

WILLIAM T. DENNIS et al., caveators, plaintiffs in error. v. WILLIAM J. WEEKES, propounder, defendant in error.^*

Supreme Court of the State of Georgia

(Atlanta, July Term, 1872.)

Caveat to will. Admission of executor. Undue influence. False representations. Evidence. Impeachment of witness. Before Judge Johnson. Talbot Superior Court. March Term, 1872.

William T. Dennis et al., heirs-at-law of William Stallings, deceased, filed a caveat to the paper propounded as the will of said Stallings upon the following grounds, to-wit:

1st. That the paper propounded for probate by William J. Weekes as the last will of said William Stallings, is not the will of the said William Stallings, because when said Stallings signed said paper he was incompetent, from insanity and metal imbecility, to make a will.

2d. That he did not make said paper as his last will freely and voluntarily, but made the same in consequence of the undue influence and constraint which the said Weekes then exercised over him.

3d. That the said Weekes did, by fraud and deceit, and fraudulent and false representations, procure the said Stallings to make said will.

4th. That the said Weekes used fraudulent practices upon the fears, affections and sympathies of the said Stallings, and thereby procured him to sign said paper as his will.

The paper propounded as said will was as follows:

"State of Georgia—Talbot County:

"In the name of God, Amen.

"I, William Stallings, of the county and State aforesaid, being of sound and disposing mind and memory, but being somewhat advanced in age, deem it right and proper to make, ordain, publish and declare my last will and testament, and after having had the same under contemplation *for several days, do hereby ordain, publish and declare this instrument of writing to be my last will and testament, hereby revoking and annulling all former wills or codicils heretofore made by me.

"Item 1st. I desire a decent burial, suitable to my circumstances and condition in life.

"Item 2d. At present I am owing but little, but should there be any debts due by me at the time of my death I direct that they be promptly paid.

"Item 3d. As my son-in-law, William J. Weekes, has had control of my papers and money, and as we have this day settled, and in which settlement he has exhibited and shown a list of paper amounting to $30,430 65, to which he has accounted for cotton and money to the amount of $7,995 40, making in the aggregate, now in his hands in paper and money, the sum of $38,426 05. Should there have been anything omitted in our settlement, I do hereby relieve him from the payment of the same, and do give the same to him.

"Item 4th. The above amount being so in the hands of William J. Weekes, and mostly in paper, it is my will and desire, and I do hereby give and bequeath unto my daughter, Virginia A. Stallings, on the terms and conditions hereinafter specified, one-half the same. Also, one-half all my other property, real and personal, of every kind and description; all of which is to go into the hands of William J. Weekes, as trustee of my said daughter, for her sole and separate use, and not to be subject to the debts of any husband she may hereafter marry. Should she die without having or bearing any living child or children, then the said property so given my daughter Virginia A., is to become the property of my grandchildren, Julia J. Weekes, Mary Ann Weekes, and James H. Weekes, children of my daughter, Martha Weekes, de-ceased, said property not to be liable to the control of the husband of said Virginia.

"Item 5th. All the remaining portion of my estate being one-half ofsaid effects, so in the hands of William J. Weekes, one-half of all my estate, real and personal, of every kind *and description, I gave and bequeath unto my grandchildren, Julia J. Weekes, Mary Ann Weekes, and James H. Weekes —the same to be equally divided between them; and I do hereby appoint said William J. Weekes guardian, to receive and control the property given to my said grandchildren.

"Lastly. I nominate and appoint as my executor, William J. Weekes, to execute this my will.

"In testimony whereof I have hereunto set my hand and seal, and have fully executed this my will.

(Signed)

"William Stallings, [Seal.]

"Signed, sealed, published and declared by William Stallings, as his last will and testament, in the presence of us, who have each subscribed the same at the request, and in the presence of the testator and of each other, this 10th May, 1867. "Joseph Pou,

(Signed) "T. H. Persons,

"Marion Bethune."

The issue upon the caveat came on for trial in the Superior Court upon appeal from the Court of Ordinary, and resulted in a verdict establishing said paper as the last will and testament of William Stallings, deceased.

Caveators moved for a new trial upon the following grounds, to-wit: 1st. Because the Court erred in excluding the paper purporting to be a schedule of the solvent promissory notes of said William Stallings, in the hands of said William J. Weekes, as his agent, principal and interest being included to May 1st, 1857, said paper being offered in evidence by said caveators as tending to show the fraud and inaccuracy of the pretended settlement had between said Weekes, as agent, and said Stallings on the day of the execution and a short time before said pretended will was executed, and which is referred to in said pretended will. Caveators, before offering said paper in evidence, had provedby one William T. Dennis, that he found said schedule among the papers of *said William Stallings after his death, and that, the paper was in the handwriting of said William J, Weekes.

2d. Because the Court erred in refusing to allow caveators to prove that said William J. Weekes, shortly after the death of said William Stallings, and after said will had been proven by said Weekes in common form, told William T. Dennis, the witness, that he, said Weekes, had procured said Stallings to make and execute said will in order to prevent a bastard child of Nancy Stallings, an idiot daughter of said William Stallings, from inheriting any portion of the estate of said William Stallings, it having been proven that said Nancy Stallings had died in 1866, and before the execution of said will.

3d. Because the Court erred in refusing to allow caveators to prove by the witness, Virginia Dennis, the admission of said William J Weekes, executor, made after the death of said William Stallings, and after the probate of the will in common form, which admission was stated in the answer of said witness, as follows: "Mr. Weekes told me that he had my father to make a will, in order to protect his (my father's) estate from a third party, viz.: the illegitimate child of Nancy Stallings; that Mr. Forbes asked him if my father had made a will; Mr. Weekes told him 'No!' Mr. Forbes said he ought to make a will in order to protect his estate from the illegitimate child of Nancy Stallings. Mr. Weekes told me that he tried to get Mr. Forbes to go to my father and have him make a will; that Mr. Forbes refused to go, but said that he (Mr. Weekes,) was the proper person to go, whereupon, he (Mr. Weekes,) went to my father and made him make the will, in order to prevent this child from having an interest in the estate. Mr. Weekes said that if the will was broken the child of Nancy Stallings would be sure to come in for a share of the estate." This excluded testimony of William T. Dennis, and of Virginia Dennis, rejected as aforesaid, was afterwards, and in rebuttal of the evidenceof said William J. Weekes, propounder, read to the jury by caveators to impeach *the said William J. Weekes, the foundation to do so having been previously laid.

4th. Because the Court erred in refusing to allow caveators to prove by Irban A. Leonard, a witness, "that he was the enrolling officer of the Government of the Confederate States in the years 1863 and 1864, for the county of Talbot, and that as such officer it was his duty to grant details of overseers on plantations having twenty negro slaves working thereon, and when there was no white man residing thereon competent to manage the same; that said William J. Weekes, as the agent of said William Stallings at that time and for those years, made application to him as such officer for the detail of Clement C. Gholson to take charge of said plantation of William Stallings, for said years, on the ground that said Stallings was of unsound mind, and incapable by reason thereof, of managing said plantation and hands, which detail was granted by witness, on the grounds aforesaid; that said grounds were sworn to by said Weekes at and before the granting of said detail." It is admitted that afterwards and during said trial, and in rebuttal of the testimony of William J. Weekes, said testimony was admitted for the purpose of impeaching said William J. Weekes as a witness.

5th. Because the Court erred in the following ruling: "When said William J. Weekes was testifying for propounder on cross-examination, having been shown the said schedule of notes, swore that said paper was a return and schedule of promissory notes, made by him as agent of said William Stallings, in 1857; that the same was correct as therein stated, and after the propounder had closed, said caveators offered said paper as rebutting evidence, but the same was excluded on objection of propounder."

6th. Because the Court erred in the following ruling; "Marion Bethune, who wrote the will and was a witness to it, testified for the propounder, that he, Weekes and Stallings, were together in the house of the latter; that Weekes had an account book which he said contained astatement of what he owed Stallings, and showed an account covering \'many pages of the book; that he, the witness, tookfrom the book the added up aggregate of the notes of Stallings and of the pounds of cotton sold by Weekes for Stallings;" to which statement caveators objected, insisting that the books should be...