Gordon v. Gilmer
| Decision Date | 19 February 1914 |
| Citation | 141 Ga. 347,80 S.E. 1007 |
| Parties | GORDON v. GILMER. |
| Court | Georgia Supreme Court |
(Syllabus by the Court.)
It is not proper practice to exhibit to a witness, on his examination in chief, an affidavit formerly made by him in regard to the point in issue and to ask him if that was his former evidence, and if it is true. Daugharty v. Drawdy. 134 Ga. 650 (3), 651. 68 S. E. 472.
(a) In view of the fact that it appears from the brief of evidence that the witness (who was examined by interrogatories), in answer to questions, first testified fully as to the facts involved in controversy, and by a later interrogatory was asked to look at a certified copy of a will and a transcript of an affidavit made by him in connection with the probate of a will in common form, and see if that was a transcript of his testimony, and, if so, to state whether it was true, and in view of the fact that the ground of the motion for a new trial complaining of this ruling fails to comply with the requirement of law by setting out in full or in substance the affidavit, a reversal might not result from this ruling alone.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4140-4145, 4151, 415S-4160; Dec. Dig. § 1048;* New Trial, Cent. Dig. §§ 250-253; Dec. Dig. § 124;* Witnesses, Cent. Dig. §§ 874-890; Dec. Dig. § 255.*]
Where one ground of a caveat to a will was that the testator's mother used undue influence in its procurement, and there was some evidence tending to show that the mother, who was a legatee, had made admissions indicating that she caused the will to be made in the manner in which it was made, as against an objection for irrelevancy, the evidence of a witness to the effect that generally, while the alleged testator and his mother lived, she had great influence over him, accompanied by facts on which apparently the opinion was based, was admissible.
(a) Objection to evidence on the general ground that it is "incompetent" or "inadmissible" raises no specific question of law for adjudication on exceptions to this court.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Wig. 1299, 1352; Dec. Dig. § 231;* Evidence, Cent. Dig. §§ 2292-2305; Dec. Dig. § 501.*]
On an issue of devisavit vel non, where a caveatrix, as the daughter of the decedent, attacked the alleged will and contended that the testator did not have testamentary capacity at the time of its execution, and that it was procured by fraud and undue influence exerted on him by his mother, by reason of which his property was left to his mother and others, only $2 being bequeathed to the daughter, as against an objection based on the ground of irrelevancy, it was competent for the propounder to prove that the testator, who was separated from the mother of the caveatrix before her birth, expressed doubt as to her legitimacy. Wright v. Hicks, 15 Ga. 160 (11), 171, 60 Am. Dec. 687.
(a) In the will the testator stated that he left his property in Georgia to his mother, "except the sum of two dollars which I give to my daughter Naomi J. Stallings [Stallings being the name of the testator], or Naomi J. Gillian, as she may be called [Gillian being the name of his wife before marriage]." The draftsman of the will testified that the testator said that he had separated from his wife and did not wish to leave the girl anything, but the clause quoted was inserted at the instance of the witness, who said that it was necessary to name her in the will, whereupon the testator replied: "Well, put her down for two dollars." Held that, if under such circumstances the naming, in the will, of the caveatrix as the daughter of the testatrix was a conclusive recognition of her as such, so as to prevent the propounder from denying that fact (Thrower v. Wood, 53 Ga. 45S), yet the reasonableness of the disposition of the estate being relevant on the issue of testamentary capacity (Civil Code 1910, g 3841), and this evidence tending to explain the small bequest to the caveatrix, its admission was not error.
(b) If it was desired to limit the purpose for which such evidence could be considered, a request for instructions on that subject could have been made. In fact, the presiding judge did not submit to the jury as an issue the legitimacy of the caveatrix.
[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. § 255;* Wills, Cent. Dig. §§ 131-134, 136, 415-420; Dec. Dig. §g 54, 165.*]
On an issue as to whether a testator was induced to make a will by undue influence, the state of feeling between a witness, who testified in favor of the caveat and as to admissions by one of the legatees, and such legatee was relevant. Civil Code 1910, g 5878.
[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 403-414; Dec. Dig. § 164.*]
Where it was charged in a caveat that the testator did not have testamentary capacity, and that the will was procured by undue influence exerted on the testator by one of the legatees, and there was some evidence introduced tending to sustain such contention, it was error to submit evidence that the legatee, since deceased, had stated in effect that the testator's mind was sound and that the will was made in accordance with his wishes. Such statements of the legatee were self-serving and inadmissible.
[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1068-1079, 1081-1104; Dec. Dig. § 271.*]
Under the decision in McDowell v. Preston, 26 Ga. 528, testimony of a witness, whose evidence was taken by interrogatories, that another female witness was (apparently at the time when such interrogatories were executed) "an habitual user of morphine, " was inadmissible, without showing that the mind of such witness was impaired by the habit, or that she was under the influence of the drug at the time when she testified, or when the facts occurred in regard to which she testified.
(a) The mere addition to the statement of the witness that the other witness was "not truthful, and would do or say anything to carry her point, " did not render the evidence as to the use of morphine admissible.
[Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 1120, 1125; Dec. Dig. g 344.*]
Under the decision in Barnwell v. Hannegan, 105 Ga. 396, 31 S. E. 116, in seeking to impeach a witness on account of bad character, the impeaching witness should be asked the questions touching general character pointed out in Civil Code 1910, g 5882; and it is not competent to prove by one witness that the character of another is "bad as to truthfulness, " and that from such character the impeaching witness would not believe the other on oath.
[Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 1157, 1158; Dec. Dig. § 357.*]
As a general rule, if the situation and circumstances of the testator and the attesting witnesses to a will at the time of its attestation are such that the testator, in his actual position, might have seen the act of attestation, the requirement of the law that the witnesses shall sign in his presence is sufficiently met. Robinson v. King, 6 Ga. 539.
(a) If at the time a testator made his will, by reason of an obstruction to the view, he could not have seen the attesting witnesses sign, by looking in that direction, and by reason of his enfeebled...
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McCormick v. Jeffers, No. S06A0682.
...competent witnesses." 3. See Reed v. Roberts, 26 Ga. 294, 300 (1858); Hamlin v. Fletcher, 64 Ga. 549, 554 (1880); Gordon v. Gilmer, 141 Ga. 347(8), 80 S.E. 1007 (1914); Glenn v. Mann, 234 Ga. 194, 199, 214 S.E.2d 911 (1975); Newton v. Palmour, 245 Ga. 603, 605, 266 S.E.2d 208 4. Restatement......
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Jackson v. State, 16266.
...Central of Georgia Railway Company v. Brown, 138 Ga. 107(2), 74 S. E. 839; Gordon v. Gilmore, Executor, 141[48 S.E.2d 871] Ga. 347(3 b), 80 S.E. 1007; Kimbrell v. State, 57 Ga. App. 294(4), 195 S.E. 460. The evidence supports the verdict, and no reversible error appearing, the judgment of t......
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Taylor v. State
... ... questions to be propounded, and 'impliedly excludes all ... others.' Barnwell v. Hannegan, 105 Ga. 400, 31 ... S.E. 116. See, also, Gordon v. Gilmore, 141 Ga. 348 ... (7), 349, 350, 80 S.E. 1007. It provides for impeachment by ... proof that the 'general character' of a witness is ... ...
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Jackson v. State
...is not error and this ground is without merit. Central of Georgia Railway Company v. Brown, 138 Ga. 107(2), 74 S.E. 839; Gordon v. Gilmore, Executor, 141 Ga. 347(3 Kimbrell v. State, 57 Ga.App. 294(4), 195 S.E. 460. The evidence supports the verdict, and no reversible error appearing, the j......
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Socially Distant Signing: Why Georgia Should Adopt Remote Will Execution in the Post-covid World
..."by reason of an obstruction to the view," could not have seen the witnesses sign by looking in their direction (quoting Gordon v. Gilmer, 80 S.E. 1007, 1008 (Ga. 1914))); Chester v. Smith, 677 S.E.2d 128, 130 (Ga. 2009) (holding a will invalid because the witnesses signed it in a bank whil......