Looney v. Looney

• Decision Date: 12 May 1945
• Docket Number: 15139.
• Citation: 34 S.E.2d 520,199 Ga. 415
• Parties: LOONEY et al. v. LOONEY et al.
• Court: Georgia Supreme Court

34 S.E.2d 520

199 Ga. 415

LOONEY et al. v. LOONEY et al.

No. 15139.

Supreme Court of Georgia

May 12, 1945

Rehearing Denied June 7, 1945.

J. L. Looney and S.E. Looney as propounders filed in the court of ordinary of Floyd County a petition to establish a copy of an alleged will of their grandfather, T. M. Looney and to probate the same in solemn form. A purported copy of the will was attached to the petition which showed that the will was dated in 1923, and was witnessed by W. S. Rowell Rowell C. Stanton, and James Maddox. It bequeathed all the testator's property to his son, John M. Looney, for life with remainder to the above two propounders, sons of said John M. Looney. A caveat was filed to said petition by Mrs J. J. Davis, W. L. Looney, and Mrs. Emmett Bridges, who alleged that they were legatees of John M. Looney, the sole heir of T. M. Looney. Upon the trial in the superior court to which the case was appealed by consent, J. L. Looney, one of the plaintiffs, testified that T. M. Looney, his grandfather, died March 24, 1924, and that prior to his death he had made a will in writing. James Maddox, one of the purported subscribing witnesses to the will, testified that he was an attorney practicing in Rome, Georgia, in 1923; that he knew T. M. Looney but, as to whether T. M. Looney came to his office in 1923 to get his will drawn, he had no recollection whatever, his recollection being entirely negative and his mind blank, but he did not testify that Looney did not do so; that he had no recollection of having drawn such a will nor of Looney signing it in his presence; that Looney was in his office about that time, being a client, and he did draw some papers for Looney, who was mentally capable of drawing and executing a will. On cross-examination, he testified that the language of the will as attached to the petition was not such as he would ordinarily use, and that he never drew a will in which he did not provide for the payment of debts. Rowell Stanton, another one of the purported subscribing witnesses to the will, testified that he was a practicing attorney in Rome in 1923; that he would not say he knew T. M. Looney, and he had no recollection of witnessing a will of Looney in 1923, his testimony being entirely negative, and he having no memory of it whatever; that he would not say he did not witness it, and possibly he could have done so; that W. S. Rowell, third alleged subscribing witness to the will, was dead. W. E. Bridges testified that he married a granddaughter of the testator, Looney; that the day before the testator died, he witness was in Looney's room, and Looney told the witness that 'he had some papers at the bank and he wanted me to go and get them for him, at the First National. I think he gave me a written order, told me to see Mr. Harris, the cashier of the bank. I attended to that errand for him. I got some papers for him at the bank. I do not know whether his will was in these papers, it was in a brown envelope and it was sealed up.' He testified further that he carried the envelope to Looney's home the next day, saw that Looney was dying, and left before he died; that he gave the sealed envelope to J. M. Looney, the son of the deceased, a week or two later, who put it in his pocket, and the witness never saw it again; that he did not remember whether there was any handwriting on the envelope; and that he did not know what was in the envelope, whether deeds or other records. It was stipulated that after search the will of T. M. Looney could not be found. The propounders then proffered their own testimony, going to show the proper execution of the will and its contents, which, on objection, was excluded. One of the propounders then proffered his own testimony that in his presence the testator, upon executing the will, carried it to the First National Bank and put it in a safety-deposit box (which was in the year 1923). This testimony, on objection, was excluded. The propounders then offered the testimony of still another witness as to a declaration of the deceased in a conversation with the witness in 1923, that the deceased had drawn a will leaving his property to his two grandsons, the propounders, with a life estate to John Looney, and had left the will in a safety-deposit box at the First National Bank. This...