Hancock v. Wilson
| Decision Date | 07 March 1958 |
| Docket Number | No. 19976,19976 |
| Citation | 214 Ga. 60,102 S.E.2d 551 |
| Parties | Oliver C. HANCOCK v. Leila G. WILSON. |
| Court | Georgia Supreme Court |
The plaintiff in error, as executor, filed a petition for probate in solemn from of the alleged last will of Mrs. Ollie King. The defendant in error filed her caveat, objecting to the probate of the will upon the grounds of testamentary incapacity, undue influence, and fraud. The Ordinary of Fulton County sustained the caveat and denied probate of the alleged will. The plaintiff in error filed his appeal to the superior court. The jury in the superior court returned a verdict finding against the alleged will, and judgment was duly entered upon the verdict.
In the bill of exceptions error is assigned on judgments of the court overruling certain demurrers to the caveat; and overruling a motion for judgment notwithstanding verdict and a motion for new trial, as amended.
C. E. Moore, Oliver C. Hancock, Atlanta, for plaintiff in error.
A. Paul Cadenhead, Nall, Sterne, Miller, Cadenhead & Dennis, Robt. E. Hicks, B. Carl Buice, Atlanta, for defendant in error.
Syllabus Opinion by the Court.
1. In the present case, the caveat was several times amended, and demurred to; some of the grounds of the demurrers were overruled, and others sustained with the right to amend. When a pleading is amended, after being demurred to, questions made by the first demurrer become moot, and when the pleading is again demurred to, and again amended, the second demurrer likewise becomes extinct and nugatory. Code, § 81-1001; Holliday v. Pope, 205 Ga. 301, 308, 53 S.E.2d 350; Hunter v. Ogletree, 212 Ga. 38, 89 S.E.2d 891. To the redrafted caveat (which recites that it was filed 'pursuant to the direction of the court') the propounder renewed 'all of his demurrers heretofore filed.' The redrafted caveat sufficiently alleged mental incapacity, undue influence, and fraud, to withstand a general demurrer. The grounds of the special demurrers, previously filed, were not germane to the allegations of the redrafted caveat, were not meritorious, and the court did not err in overruling them.
2. 'The weight of testimony and the credibility of a witness are peculiarly and exclusively, under the law of Georgia, questions for the jury; * * *.' Raleigh & Gaston R. Co. v. Allen, 106 Ga. 572, 575, 32 S.E. 622, 623; Adler v. Adler, 207 Ga. 394, 405, 61 S.E.2d 824; Knox v. Knox, 213 Ga. 677, 679, 101 S.E.2d 89. A careful consideration of the testimony and the documentary evidence (consisting of more than 550 pages of the record) reveals that the verdict is not without evidence to support it. The motion for judgment notwithstanding verdict, and the general grounds of the motion for new trial, were properly denied.
3. In ground 4 of the amended motion for new trial, error is assigned on an extract from the charge...
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