Rea v. Pursley

• Decision Date: 18 July 1930
• Docket Number: 7434.
• Citation: 154 S.E. 325,170 Ga. 788
• Parties: REA v. PURSLEY et al.
• Court: Georgia Supreme Court

154 S.E. 325

170 Ga. 788

REA v. PURSLEY et al.

No. 7434.

Supreme Court of Georgia

July 18, 1930

Syllabus by the Court.

Exceptions to exclusion of hearsay testimony specified in Code held not exhaustive of cases in which hearsay is admissible; post testamentary declarations of alleged testatrix that she wanted estate to go to husband and never made will held admissible on probate of will attacked as forgery (Civ. Code 1910, § § 5762-5764 5766-5773).

The cases specified in the Code in which hearsay evidence is admitted as exceptions to the general rule excluding hearsay testimony are not exhaustive of the cases in which hearsay evidence is admissible. Post testamentary declarations of an alleged testatrix, to the effect that she wanted her entire estate to go to her husband, that she had never made a will and never would as long as she lived, and that there was no necessity of her making a will, as she had but one heir, who would take her estate, are admissible on the probate of an instrument offered as the will of such testatrix, by which she gave her estate to her brother and sisters to the exclusion of her husband, and to the probate of which a caveat was filed by the sole heir of the husband, who died shortly after his wife, upon the ground that the instrument offered for probate was not the will of the alleged testatrix, but was a forgery, upon which issue there was proper evidence pro and con. Such declarations, though they may not be admissible, when standing alone, to prove or disprove the genuineness of the instrument offered for probate, on which point we do not now express any opinion are admissible in cases where the genuineness of the instrument has been assailed by other proper evidence, either to strengthen or weaken the assault.

Assignment of error alleging correct instructions were erroneous because court did not give other correct instructions held insufficient.

It is not a good assignment of error to allege that certain instructions, correct in themselves, are erroneous because the court did not go further and give in connection therewith another correct instruction to the jury.

Charge that certain portions of Code were inapplicable and requiring jury to apply applicable portions thereof held erroneous (Civ. Code 1910, § 5834).

After giving in charge to the jury section 5834 of the Civil Code of 1910, the trial judge erred in instructing the jury that they would readily see that a portion of this section could have no application to the issues or evidence in the case and in instructing them to apply so much of it as they might find applicable to the evidence which had been admitted. The judge should have instructed the jury what portions of the section were applicable and what portion was not applicable and should not have left for the jury the determination of this matter for themselves.

Charge that jury, if desiring, could compare genuine signatures with signature to instrument in determining its genuineness, held erroneous as entitling jury to disregard portion of pertinent evidence.

On an issue of forgery vel non of an instrument offered for probate as the alleged will of a testatrix, and after having admitted her genuine signatures for the purpose of comparing such genuine signatures with the signature to the alleged will, it was error to instruct the jury, in effect, that in passing upon such issue they could, if they saw fit, compare such genuine signatures with the signatures to such instrument, in determining its genuineness. This is so for the reason that the jury, in deciding an issue of fact, should consider all evidence pertinent thereto, and should not be instructed in effect that they could, if they saw fit, disregard a portion of the pertinent evidence.

Error from Superior Court, Chattooga County; James Maddox, Judge.

Proceedings by J. H. B. Rea for probate of will of Joanna Pursley, in which C. N. Pursley, Jr., filed a caveat. Judgment for caveator, motion for new trial by propounder was overruled, and propounder brings error.

Reversed.

BECK, P.J., dissenting in part.

W. M. Henry and Norman Shattuck, both of La Fayette, for plaintiff in error.

C. D. Rivers, of Summerville, and Rosser & Shaw, W. M. Henry, and Norman Shattuck, all of La Fayette, for defendant in error.

HINES J.

J. H. B. Rea offered for probate an instrument purporting to be the will of his sister, Joanna Pursley, who before her marriage to C. N.

Pursley, Sr., was Joanna Rhinehart. C. N. Pursley Jr., filed a caveat, alleging that Joanna Pursley died on January 10, 1928, never having had issue, leaving her husband, C. N. Pursley, Sr., who died after her death, as her sole heir at law, and as such entitled to her estate under the statute of distributions; that caveator was the son and the only heir at law of C. N. Pursley, Sr., who inherited the entire estate of the testatrix; that the signature of testatrix to said instrument was forged; that the names of W. M. Roberson, W. W. Roberson, and T. J. Edge, the persons signing said instrument as witnesses, were not signed by them or in the presence of or with the consent of Joanna Pursley; and that said paper was not the will of said Joanna Pursley, but was a forged instrument.

On the trial, the testimony offered in behalf of the propounder tended to show the following: The instrument offered for probate as the last will of Joanna Pursley was found, some time after her death, among the papers of her nephew, W. M. Roberson, who was one of the apparent witnesses to said instrument. At the time the will was offered for probate, the three persons who purported to be the attesting witnesses thereto were dead. Tom Edge, a son of T. J. Edge, was sworn as a witness by the propounder. This witness was about 12 years of age at the time of the alleged execution of the will. He testified that his father and the other two attesting witnesses went to the residence of Mrs. Rhinehart (Mrs. Joanna Pursley) in Chattooga county, some distance from the home of the witness and of the attesting witnesses, for the purpose of doing some work on a gin; that he went with them, and that while at the home of Mrs. Rhinehart, and while he and the attesting witnesses were at the dinner table, Mrs. Rhinehart said that she had a paper that she wanted them to witness, and brought it to the table, and they signed. This witness further testified:"What makes me remember it, Mr. Roberson, that is Uncle Zip, says, "Aunt Joe, there is no use in making a paper like that; you will outlive any of us.' They all signed the paper there. I seen W. M. Roberson sign a paper that looked like that. I seen W. W. Roberson make his mark. I saw my father sign that paper. I know my father's signature. She gave that paper, after it was signed, to Button Roberson, and told him to keep it. I did not see Mrs. Rhinehart sign. I do not recall that I saw her sign it, I suppose. The paper was in her possession. She just said it was paper; she did not say what it was when she asked them to witness it. I just thought it was a will by what Uncle Zip said about it. I could not say what the makeup of it was, but that looks something like the size of it" (instrument purporting to be the will of Mrs. Pursley being exhibited to witness). The propounder introduced other witnesses as to the genuineness of the signatures of Mrs. Pursley and the attesting witnesses. Propounder further introduced the testimony of witnesses as to the similarity between the handwriting of the signature of Mrs. Pursley to this instrument and the signatures of the attesting witnesses, and genuine signatures of the testatrix and attesting witnesses. Propounder also offered statements made to witnesses by the alleged testatrix during her lifetime, tending to show that she had executed a will.

The evidence offered by the caveator tended to establish the following: The instrument offered for probate had been changed by an erasure of the date therein as originally written on the typewriter, and another date substituted. The body of the instrument and the attestation clause recited the name of Mrs. Joanna Rhinehart as the testatrix, while the signature was Joanna Pursley. Caveator offered the testimony of a number of witnesses, tending to show that the signature to the will was not the genuine signature of Joanna Pursley, and introduced in evidence several of her genuine signatures for the purpose of comparison by the jury with the signature to the purported will; also the testimony of George M. Clark, a handwriting expert, who, after giving his reasons, testified that in his opinion the signature of Joanna Pursley to the purported will, and the signatures of the witnesses thereto, were forgeries; also the testimony of several witnesses as to statements made by Mrs. Pursley during her lifetime, to the effect that she had not executed any will.

The jury returned a verdict in favor of the caveator. The propounder moved for a new trial upon the general grounds and upon several special grounds which are dealt with hereinafter.

1. The trial judge, over objection of propounder, permitted caveator to introduce the following evidence: W. C. Hatfield testified as follows: "She [Mrs. Joanna Pursley] said 'everything I got goes to Charley. I have not given any will to anybody, have not signed one, and never will so long as I live."' Grady Ramey testified: "She [Mrs. Pursley] said I could make an investigation so as to see there wasn't any will, but if I wanted to make an investigation before I paid her money, to go ahead and do it. She told me there wasn't any will made." Eva Jane Smith testified: "She [Mrs. Pursley], says, 'I don't mean to will anybody anything or give anybody anything; I don't know what Charley will want to do with what there is when...