Kitchens v. Kitchens

• Decision Date: 30 June 1869
• Citation: 39 Ga. 168
• Parties: JOEL KITCHENS et al., plaintiffs in error. v. ELIZABETH KITCHENS, defendant in error.
• Court: Georgia Supreme Court

39 Ga. 168

JOEL KITCHENS et al., plaintiffs in error. v. ELIZABETH KITCHENS, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, June Term, 1869.)

Establishing lost will. Before Judge Robenson. Jasper Superior Court. December Term, 1869.

Elizabeth Kitchens averred that her husband, Charles Kitchens, died testate, produced an alleged copy of his will, by which she took the whole estate and prayed the Ordinary that it should be established in lieu of the lost original. The administrator of Charles Kitchens, and his heirs-at-law objected upon the grounds that Charles Kitchens died intestate; that, at the date of the pretended will, he had not testamentary capacity; that, if he made it, it was done 'under compulsion or wrongful influence by his wife; that he did not understand what the paper was when he signed it, and that the widow was estopped from setting up a will because she had applied for letters of administration on his estate.

The paper was established and admitted to record, as his will, in the Court of Ordinary. Caveators appealed to the Superior Court. When the case was called there, in October, 1867, the propounder's counsel moved to dismiss the appeal for want of the security required by the statute. This being satisfactorily explained, the Judge allowed the security to be then given, and refused to dismiss the appeal. Counsel for caveators filed their exceptions to this ruling and they were duly certified, allowed and entered of record. (See Irwin's Code, section 4191.) The trial was then had. The mass of *the testimony was upon matters of inducement, about which there wasno controversy. These facts are in short as follows: Charles Kitchens owned in farm in said county worth $500 00, of the rental value of $100 00, and farm stock, etc., of little value. His house had but one room. He and his wife were very aged, she being over three score and ten at the trial. He made three wills. What the first was did not appear. The second made such a disposition of his property that his wife became offended, and for a few weeks separated from him. Afterwards, (but how long did not appear,) while they were living together, to-wit, on the 3d of December, 1863, testator sent for a scrivener and procured him to write the will now propounded. He wrote it as Charles Kitchens dictated, and handed it to Mrs. Kitchens. On the 5th of January, 1864, Charles Kitchens executed it according to law; he was then unwell, but of testamentary capacity. The executed will was not, at the time of execution, read over to testator; he said it had been read to him, and handed it to his wife, saying it was her will. She put it in "Mason book" in a chest, in which the testator\'s tobacco and liquor, a little specie, etc. etc., were kept, the key to which usually hung by the chimney corner. This chest was frequently opened by different persons and the will, being longer than the book, was seen whenever the chest was opened. Testator died on the 12th of January, 1864. After the death, the old lady and her granddaughter, Matilda, and Joel Kitchens, and Wm. B. Kitchens, slept in the house near the corpse and near the chest. Next morning the chest was missing from the house; it was found, but the will and specie was gone. She sought counsel on the following Sunday to establish the will, was advised not to insist upon that, and afterwards applied for administration, but always said he died testate. For the want of security, and other reasons not given, she failed to obtain letters of administration. There was nothing to show undue influence but the facts aforesaid, and remarks made by testator, such as that he had gotten most of his property by her, but that the will was made to keep peace, and the like. The real fight was upon the existence of the paper at *his death. William B., Joel and Matilda testified that, before his death, in their presence, testator made her, Matilda, bring the will from the chest, and burn it. The old lady and her grand-daughter, Mrs. Smith, on the contrary, testified that they saw the will in the chest after the death of testator, and before the chest was removed, and the old lady testified that the door of the house was securely latched inside at night, that she saw William B. come into the house, after he and the others had been to bed, without his coat or hat, and that next morning the bed on which he slept had on it clay like that where the stolen chest was found. William B. denied on oath leaving the house during that night. There was much evidence as to family quarrels between the old lady and the caveators, as to their declarations and conduct, etc., etc., pro and con., which is of no value here. The execution of the will was proven by three of the witnesses, and the death of the other was shown and his signature was proven, the contents of it were shown by Mrs. Kitchens and the scrivener, and by two of the subscribing witnesses, to have been substantially the same as the copy...