Newton v. Higdon

• Decision Date: 10 September 1970
• Docket Number: No. 25891,25891
• Court: Georgia Supreme Court
• Parties: Emma N. NEWTON et al. v. Helen M. HIGDON et al.

Page 57

177 S.E.2d 57

226 Ga. 649

Emma N. NEWTON et al. v. Helen M. HIGDON et al.

No. 25891.

Supreme Court of Georgia.

Sept. 10, 1970.

Syllabus by the Court

The evidence authorized the verdict probating the copy of the will of Ebbie Jane Moore and, no error of law appearing, the judgment of the trial court must be affirmed.

O'Kelley, Hopkins & VanGerpen, Thomas P. Gresham, Atlanta, for appellants.

Harris, Rolander & Simmons, Robert B. Harris, Atlanta, for appellees.

NICHOLS, Justice.

A conformed copy of a will was filed for probate and probate ordered by the ordinary. A caveat having been filed, the caveators appealed to the superior court where the jury found for the propounders and against the caveators and it is from this judgment that the present appeal is filed. The evidence showed the will of the deceased was not located after her death and that the will offered for probate was a carbon copy of a will prepared by a law firm not representing either side of the present controversy.

1. During the trial of the case an attorney with the law firm which purportedly prepared the will for the deceased testified as to the practice by such firm in preparing wills, and that while he did not remember the circumstances under which the will in controversy was executed he did not remember any occasion when the usual practice was not followed. The usual practice followed was for the client to go into the attorney's private office and review the will previously prepared by the firm, and when the client was satisfied that the will was completed in accordance with the client's desires, two secretaries were called into the office and the will executed by the client and witnessed by the attorney and the secretaries each in the presence of the others and then one of the secretaries would write the names, dates, etc., on one of the copies and later type this same information on a copy. After testifying that the procedure never varied and that he never witnessed a will of a client who he did not think was mentally capable of executing a will he was asked: 'From having examined the records of your firm, is there any doubt in your mind whatsoever that on May 12, 1965, you together with Miss Nix and Mrs. Black, were witnesses to the will of Ebbie Jane Moore?' Objection was made to such question as calling for a conclusion. The objection was overruled.

'That a witness may refer to a written instrument, memorandum or entry in his books, to refresh or assist his memory, is a well established rule of evidence; and even where the witness has no recollection of the fact, independent of the entry in his books, but will testify as to his uniform practice to make his entries truly, and at the time of each transaction, and will further state he has no doubt, from such practice, that the entry in question is correct, his testimony is admissible; for then the witness speaks upon his own responsibility, under the legal sanction of his oath, his memory being refreshed by the entry in his book or memorandum, the same having been made in accordance with his known habit and practice. 1. Greenlf. Ev. §§ 436, 115. Merrill vs. the Ithaca and Oswego Rail Road, 16 Wendell's Rep. 5 and 6. Bank of Monroe vs. Culver, 2 Hill's N.Y. Rep. 531.' Williams v. Kelsey & Halsted, 6 Ga. 365, 373. Code § 38-707. Compare Adams v. Adams, 213 Ga. 875(2), 102 S.E.2d 566. The objection was properly overruled, and the appellant's 5th enumeration of error is without merit.

The sixth enumeration of error which raised the identical question as to the testimony of one of the witnesses is likewise without merit.

2. Under the decision in Sheffield v. Sheffield, 215 Ga. 546, 551, 111 S.E.2d 218, the testimony of Helen Massey Higdon, objected to as hearsay, was clearly admissible. However, even if such evidence had not been admissible the caveators elicited the same testimony from such witness on cross examination. See Gaskins v. McCranie Timber Co., 225 Ga. 280, 283, 168 S.E.2d 311. Enumerations of error 7 and 8 are without merit.

3. Enumerations of error numbered 9 through 12 complain of the admission of documentary evidence. The evidence complained of in enumeration of error numbered 9 is a file of a law firm showing a record of transactions, etc., with the deceased, it was properly testified to as a business record under the provisions of Code...