Garrett v. Wheeless
| Decision Date | 12 September 1882 |
| Citation | 69 Ga. 466 |
| Parties | GARRETT et al. v. WHEELESS. |
| Court | Georgia Supreme Court |
September Term, 1882.
1. A testamentary paper in the following terms was offered for probate: " I, Riley Garrett, of the county of Randolph and state of Georgia, being of perfect mind and memory thanks be given unto God, calling unto mind the mortality of body and knowing that is appointed unto all men once to die I do make and ordain this my last will testament, that is to say, principally, and first of all, I give and recommend to the earth to be buried in decent christian manner, at the discretion of executors, who shall be Isham Wheeless, and so much of my worldly estate I give and bequeath unto William Augustus Wheelus, and I do hereby revoke and disannual all other wills, legacies and bequests, confirming this to be my last will and testament:"
Held, that such a will was not so uncertain as to be void. A will should not be refused to be admitted to probate on account of uncertainty, unless it be so uncertain that it cannot be construed by the aid of parol testimony.
2. It appears that the testator in this will was a bastard; that the executor was his first cousin, and the legatee named was the executor's child, six years of age; that he kept his will and a photograph of the boy in his trunk together; and that a year before his death he stated that this legatee was the only relation he recognized (the father of the legatee having died) though there were others nearer of kin, in fact:
Held, that in the light of these facts, the intention of the testator was to provide for his burial expenses, and leave the remainder of his property to the legatee named.
Wills. Legacies. Before Judge WELLBO Hall Superior Court. February Term, 1882.
The facts of this case are sufficiently stated in the decision, except the following:
Riley Garrett, the testator, was an illegitimate son of one Mary Garrett, and the caveators were his first cousins on his mother's side. The testimony shows that he always recognized Isham Wheeless, the father of the legatee in the will, as his cousin, and that they were intimate with each other.
G. H. PRIOR; J. B. ESTES & SON; GEO. K. LOOPER; W. L. MARLER; H. H. PERRY; L. E. BLECKLEY, for plaintiffs in error, cited: Jarman on Wills, vol. 1, [24]; 24 Ga. 643, 658; 28 Id., 98, 330; Watford vs. Foster, February Term, 1881; Williams on Executors, vol. 1, 458 [393]; 35 Conn. 525; Wms. on Exrs., vol. 1, 454 (note r.); 3 Sw. & Tr., 6; 47 N. H., 27, 46; 10 Richardson So. Ca., 193; 59 Ga. 473; Code, 2394; 2 Kelly, 50; Bacon's Abr., X, 479; 2 Kelly, 32; 26 Ga. 552; 32 Id., 601; 25 Id., 430; Reese's Manual, 274; 25 Pa. 460; Jarman on Wills, vol. 1., pp. 643, 646; margin, 356-368; pp. 649, [359], 662, 663, [370]; 2 Roper on Legacies, 1450, 1452; 44 Md. 30; Jarman, vol. 1, 739, [425]; Wms. on Ex'rs, vol. 2, 1244, note; Starkie on Ev., 1272; Wigram on Wills, 186; Code, 2456; 44 Md. 30; 16 Ga. 507; Jarman, vol. 2, p. 60 [486], 61, note, 74, 56 [483]; 1 Sneed, 394; 12 Grattan, 196; 3 Metc, Ky., 156; Roper on Legacies, [1469-70-71-72]; O'Hara on Wills, 42; 26 Ga. 522; 2 Kelly, 47; 6 Conn. 270, 275; 32 Ga. 601; 1 Kelly, 20; 14 Ga. 286, 370; 28 Id., 263; Reese's Manual, 97, 100, 276; Code, 2414; 30 Ga. 167; 14 Id. 377, 379; 32 Id., 601; 28 Id., 264; 47 Id., 469, 470; Reese's Man., 275; Bacon's Abg., X, 538; Gr. on Ev., §289; Phillips on Ev., Cowen & Hill's notes, vol. 3, 1359, 1360, 1361, 1384; Jarman on Wills, vol. 1, 711, note (3) Id., [347]; Wigram, 242; Phillips on Ev., Cowen & Hill's notes, vol. 3, [1384], [1385], [1387], [1389], [1428]; Jarman on Wills, vol. 1, 711, 761, 643, 645, [356]; 3 Metc. Ky., 156; 50 Ga. 526; 12 Id., 156, 163; 14 Id., 597; 62 Id., 169; 27 Id., 324; Roper on Legacies, [1469, 1472]; 12 Grattan, 196; 1 Jarman on Wills, 52, note t and [67]; In re Barden, L. R., 1 Probate and Divorce, 325; Code, § 2445; 28 Ga. 533; 1 Wms. on Ex'rs, [255]; Jarman, vol. 1, [168-9-70]; In re Fraser, L. R., 2 P. & D., 40, 406; 24 Ga. 643, 658.
HOPKINS & GLENN; J. N. DORSEY; S. C. DUNLAP, for defendant, cited: 60 Ga. 194; 21 Id., 23, 44, 45; 14 Id., 362; Code, §§2456, 2395; 16 Ga. 496; 1 Wms. on Ex. 299; 20 Ga. 553; 40 Id., 575; 2 Jarman on Wills, 53 and note, 56, 60; 39 Ga. 652; 40 Id., 25; Wms. on Ex., 1162, 1166; 2 Blackstone Com., 279: 1 Jarman on Wills, 643; 1 Redfield on Wills, rule 10, page 426, rule 19, page 427; 12 Grattan, 196; Am. Prob. cas. vol. 1, 168; Redf. on Wills, 434, rule 17, 7th qualification, 435, rule, 23.
The following instrument was offered for probate:
GEORGIA-RANDOLPH COUNTY.
In the name of God, amen. I, Riley Garrett, of of the county of Randolph, and state of Georgia, being of perfect mind and memory, thanks be given unto God, calling unto mind the mortality of body, and knowing that is appointed unto all men once to die, I do make and ordain this my last will testament, that is to say, principally, and first of all, I give and recommend to the earth to be buried in decent christian manner, at the discretion of executors, who shall be Isham Wheelus, and so much of my worldly estate, I give and bequeath unto William Augustus Wheelus, and I do hereby revoke and disannual all other wills, legacies and bequests, confirming this to be my last will and testament.
Is testimony whereof, I have hereunto signed my signature, this 18th day of January, 1844. Signed and sealed this 18th day of January, 1844.
ROBERT O'CONNER, }
HEZEKIAH BRUKE, }
W. C. PERKINS, }
RILEY GARRETT, [L. S.]
Caveat was filed on the ground, among others, that the paper on its face was void for uncertainty.
The evidence for propounders showed that the paper offered was found in deceased's trunk, after his death, with the appearance of having been sealed, but the seal broken.
A photograph found with the will in the same trunk was shown and identified as that of Wm. A. Wheeless.
J. H. Butt testified that deceased had told him a year before his death that Wm. A. Wheeless was the only relative he had that he recognized.
Propounder then proved by interrogatories that deceased was of sound mind; that one of the witnesses, Robert O'Conner, had removed to the state of Florida before the war; that the other two witnesses were dead and proved the handwriting of all the witnesses and of Riley Garrett; that deceased and Isham Wheeless were first cousins, and that Wm. A. Wheeless was Isham Wheeless' son, and was five or six years old at date of will. That Isham Wheeless died sometime about 1852 or 1853. That there existed very kind and intimate feelings between Riley Garrett and Isham Wheeless.
The evidence for caveators traced up the relationship, and showed that the caveators were first cousins of Riley Garrett, and that there were no nearer relatives living, and that he was never married.
On these facts, the jury found for the propounders; and on the motion for a new trial by the caveators, on the ground of uncertainty on the face of the paper, and others which go to the same point, the court below held that the verdict stand, refusing the new trial, and on that judgment error is assigned.
We think that the paper is not void for uncertainty, but reading it in the light of surrounding circumstances, the intention of the testator may be ascertained. There is hardly a correctly written paragraph in the...
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