Walker v. Hunter

• Decision Date: 28 February 1855
• Docket Number: No. 66.,66.
• Citation: 17 Ga. 364
• Parties: Charles Walker, executor, plaintiff in error. vs. William Hunter, et al., defendants.
• Court: Georgia Supreme Court

17 Ga. 364

Charles Walker, executor, plaintiff in error. vs. William Hunter, et al., defendants.

No. 66.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1855.

Caveat, from Twiggs Superior Court. Tried before Judge Powers, March Term, 1854.

This was a caveat to the last will and testament of William Hunter, Sr., filed by the defendants in error, on the following grounds:

1st. That the testator, William Hunter, at the time he made and published said will, was not of testable capacity, but was of weak and unsound mind.

2nd. That the said testator, at the time he made and published his said last will and testament, was laboring under a mental delusion in regard to the slaves or negroes bequeathed by him in said will; that he fancied, and delusively believed, that their being separated and scattered after his death, might be prevented by bequeathing them all to one person; and that under such mental delusion, he made and published his last will and testament. 3d. That the said testator was unduly and improperly influenced to make the said last will and testament, by the said Charles Walker, one of the executors thereof, and in favor of whose son, or sons, not being of the blood or akin to the said testator, an estate in remainder of all the negroes and their increase was bequeathed.

4th. That the said Charles Walker, the executor of the said last will and testament of the said Wm. Hunter, deceased, procured the said William Hunter by his fraud, covin, and by his wicked and fraudulent contrivances and machinations to make the said will and testament, and that the same is void—

For that the said Charles Walker, executor, as aforesaid, induced the said William Hunter to leave his residence in the County of Twiggs, and go (to) the residence of himself, or that of one of his brothers, in the County of Pulaski, where the said will was executed.

That the. said will is headed, "Georgia, Twiggs County, " where the residence of the said William Hunter was, and executed in the County of Pulaski, where the said Charles Walker resided.

That two of the witnesses to the last will and testament were the brothers of the said Charles Walker, one of the executors thereof, and uncles of one of the legatees in remainder, and the other an employee or workman employed at the time, by the said Charles, or one of his brothers.

That the said Charles Walker, executor aforesaid, procured the draft of said will to be made by an Attorney at Law—but by what Attorney at Law is unknown to this caveator—and to be copied off by some other person—but by whom is unknown to this caveator.

That said last will and testament was not drawn by the instructions of the said testator, but by the instructions of the said Charles Walker.

That by the said will, an estate in remainder, of all the negroes of the said William Hunter, deceased, was bequeathed to one of the sons of the said Charles Walker, and in the event of his death before the death of Charles Hunter, the person towhom a life estate in the same negroes was bequeathed, then the said negroes were bequeathed to David Walker, another son of the said Charles Walker, executor.

That the said Charles Walker, nor his son or sons, are or were of blood kin to the said testator.

That the said William left several brothers and sisters, niece and nephews, his heirs at law, having departed this life without leaving a widow or child, or descendant of child; that all were excluded from the provisions of the will, except Charles Hunter, although they were friendly and on good terms with the said testator; that to the said Charles Hunter the said William Hunter bequeathed and devised the whole of his estate, real and personal, except his negroes, and a life estate in them.

That the said Charles Hunter was a man of weak mind, easily controlled and much under the influence of the said Charles Walker, the executor as aforesaid, and actually, in a few months after the death of the said William Hunter, deceased, executed to the said Charles Walker, the said executor, a deed of gift of all his lands, acquired under and by virtue of said will: and also of all the stock and their increase, and his plantation tools—all of great value, to-wit: of the value of twenty thousand dollars, or other large sum; and subsequently executed a will, by which, in a state of great mental weakness and unsoundness, and while of intestable capacity, a this caveator believes and alleges, he bequeathed to the said Charles Walker, all his money and debts not previously conveyed to him in the deed of gift: that he made no return of an inventory or appraisement of the estate of the said William Hunter: that he alone as executor of said William Hunter, at first qualified as executor and took out letters testamentary.

The following is the bill of exceptions, which will show the facts of the case.

Georgia—Twiggs County:

Be it remembered, that at the March Term, 1854, of Twiggs Superior Court, the above stated cause came on to be tried, onappeal, before the Hon. A. P. Powers, Judge, and a special Jury, when Counsel for propounder moved to strike out the second ground of caveat and so much of the fourth as brought in question the capacity of Charles Hunter, which motion was over-ruled by the Court, and propounder excepted.

EVIDENCE.

David Walker was sworn, and testified that the paper handed him was the will of William Hunter. He, the witness, subscribed it as a witness the day it bears date, 16th Nov. 1839. Thomas D. Walker and Richard W. Lee subscribed the will at the same time as witnesses with him, the witness, and that this is the paper they witnessed. Thomas D. Walker is dead, and has been for eight or ten years. Does not know where Lee is. He is not in Georgia within witness' knowledge. He has inquired for him and cannot hear of him, and does not know where he is, nor which way he went. Has been gone six or seven years. He, witness, saw testator, William Hunter, sign the will in presence of the witnesses, and the witnesses signed it in the presence of the testator, Hunter, and of each other. Witness signed it at the request of William Hunter; signed the paper as his will, in the presence of the witnesses, and they all signed in presence of each other. William Hunter came to witness' house at front gate and asked him to go with him to Charles Walker's, and he went with him; and on the way to Charles Walker's, Hunter told witness he was going down to make his will, and wanted him to witness it. Witness, David Walker, lives not over a half a mile from Charles Walker's, and between William Hunter's and Charles Walker's. Wm. Hunter lived about six miles above witness. The paper, the will shown witness, is the paper Hunter asked witness to sign. He saw Thomas D. Walker and Richard W. Lee sign it. Their signatures are genuine. As far as witness knew, William Hunter was of sound mind. He thought him, at the time, capable of transacting business. Had been acquainted with him fifteen or twenty years. When witness first became ac-quainted with him he lived about ten miles from him. Afterwards moved to within six miles. Had had a good deal of intimacy with him. William Hunter came to witness\' house on the day testified about, on horseback. He discovered no difference in his mind on that day (the day the will was executed) from what it was before. Appeared to be in good health, and was not sick. Hunter had a good deal of property, lands, negroes horses and mules. He had a good many negroes, and managed all his own business. He lived several years after the date of the will, and is said to have died in his seventy-fourth year. William Hunter, after he got to Charles Walker\'s, observed to witness, "I want you all to sign it, " (the will.) No one was with Hunter when he called at witness\' house. He wanted witness to go with him and he went. He did not then say what he wanted. Thomas D. Walker lived about three quarters of a mile from Charles Walker\'s. Lee was there when witness and Hunter got there. Thomas D. Walker got there about the time witness got there. He lived below Charles Walker\'s. Dr. Taylor was there when witnees got there. It was not half an hour after witness got there before the will was signed. The first he saw of the will Mr. Hunter had it in his hand, and he laid it on the table. No one had time to write the will after witness got there. Witness does not suppose the will is in the testator\'s hand-writing. Testator did not tell witness, as he went to Charles Walker\'s, whether he had the will written or not, nor did he show the will to witness. Charles Walker, Thomas D. Walker and witness, are brothers. William Hunter lived from three fourths to a mile from Tarversville, a public place. William Hunter invited witness from the parlor into the room where the will was executed. Charles Walker was in the room. He does not recollect that Hunter had been sick, and staying at Charles Walker\'s before the will was made. There was a report that testator once attempted to hang himself. It was, he thinks, some time before the date of the will; but never heard they had to set up with him and watch him to prevent his hanging himself. Nor does he recollect that testator had, about thattime, been at Charles Walker\'s. Cannot say that Charles Walker had attended to business for testator. Charles Walker might have shipped his cotton. The testator did not have much company about his house, but was frequently at Tarversville. He lived secluded and had but little to do with the world. Witness did not know testator before he had much property. Charles Walker visited testator in company and alone. Does not know how often. He and his family visited Hunter as relatives usually do: Testator was a good farmer, and as far as witness knows, a man of strong mind, and very determined. Witness does not know how long after the date of the will it was that Lee left. Lee usually made Thomas D. Walker\'s his home while he was in the neighborhood. The will was not...