Walker v. Walker

• Decision Date: 31 August 1853
• Docket Number: No. 34.,34.
• Citation: 14 Ga. 242
• Parties: Nathaniel F. Walker, plaintiff in error. vs. Benjamin Walker, defendant.
• Court: Georgia Supreme Court

14 Ga. 242

Nathaniel F. Walker, plaintiff in error. vs. Benjamin Walker, defendant.

No. 34.

Supreme Court of the State of Georgia

AUGUST TERM, 1853.

Caveat in Upson Superior Court. Tried before Judge Starke, May Term, 1853.

This was an issue of "devisavit vel non, " made upon the will of Mrs. Charity Walker; propounded by Nathaniel Walker, executor named therein, and to which a caveat was filed, by Benjamin Walker, on the ground of weakness and imbecility of mind in the testatrix, arising from age and infirmity; and of undue influence and artifice and deceit on the part of the pro-pounder, in procuring said will to be made. Upon this issue, the cause was submitted to a jury, and a large amount of evidence on both sides introduced; so much of which as was objected to, is as follows:

The Court permitted the Caveator to read to the jury the evidence of Elijah Thompson, delivered on a former trial of this cause, and contained in a brief of the evidence then filed, on a motion for a new trial. The witness was admitted to be dead, and the brief to have been agreed on as his evidence on the former trial.

The Caveator objected to this ruling.

Answers of John Brown. The part of the Testimony in which witness states his opinion objected to and objection overruled. The part which states the previous declarations objected to and objection overruled. He stated that he knew Testatrix ever since 1843, and boarded with her most of the time until her death, and that he nursed and waited on her during her last illness: That when he first knew Testatrix her mind was tolerably good and she could recollect very well, but during the last two years of her life her mind and memory entirely failed: That he would pay his board money on one day and she would entirely forget it by the next: That her memory failed so completely that when he paid her for board he would always have some one present to witness it: That in the last nine or ten months of her life her mind was materially worn, especially in spells of sickness, and was much worse after the death of her son Allen.

Brown states that after the death of Allen Walker, Testatrix said to him that she did not want Susan, Nat's wife, to have the wrappings of her finger, and that the will they had made for her was not such a one as testatrix wanted.

Answer to Mrs. Cheny. Objected to so far as she gives heropinion—objection overruled. Also objected to, because it has not answered last cross interrogatories—objection overruled, and these answers have been in the office 6 days and no objection has been made before trial.

She states that she knew the parties; was intimately acquainted with Charity Walker for the space of five years, and found that her mind was much impaired; she had lost almost entirely her memory. She had dealings with her frequently during the time—bought chickens, butter, eggs, &c, from her, and had to pay for the same things twice owing to a want of memory on her part: That it was in Hootensville from the year 1843 to 49, that she had to pay twice: That Testatrix would send for her, and then after she had been with her a short time, Testatrix would tell her she had better go home; and when she had returned home, would often send for her in fifteen minutes to come to see her: She knew nothing about the will.

Cross Examined.

She does not remember the particular days she conversed with Charity Walker, except as to the year, which was in 1849. She was in the habit of trading with her: That she had no doubt but that Nathaniel F. Walker was one of her favorites:

Third Cross Interrogatory.

Did any one aid or assist her in making the contracts with her? Did she not, as long as you lived near her, manage entirely, her sales of butter and eggs?

Answer to 3rd Cross Inter. She did in part only.

Interrogatories of Elisha Perryman. Objected to so far as he gives his opinion—objection overruled. He stated that he knew Testatrix, and that she did not have sufficient mind or volition to make a will: That he had frequently gone to her house and she would not recognize him, and seemed to havelost the power of recalling the memory of things unless aided therein.

Mary Barron's Answers objected to as to her opinion—objection overruled; and as to her talking foolish, objected to and objection overruled.

She states that she was intimately acquainted with Charity Walker three years previous to her death, and was often in her house and company: That often Charity Walker would send for her, and after she got to her house, Charity would not know her; and that on one occasion Mrs. Grant told her who she was; and that sometimes after being with her but a little while she would tell her it was time to go home, for it was most night, although it was hours before sundown. From these facts and others of a similar character she says that her mind was impaired and wandering, and that she talked as foolish as a child six years old. This was a few months before her death: That she does not believe she was capable of making her last will and testament: That these things took place at her house.

Cross Interrogatories.

She answers she believed it would take a sound mind and memory to write a good and valid will.

Caveators In Reply, To The Rebutting Evidence Of Pro-pounder.

J. J. Grant—Sworn. Testatrix was my grandmother. Sometime before her death I called to see her. When I went in I found her in a very disturbed condition of mind. She commenced a conversation with me by calling me as usual by name. John James I have made a will, but it is not my will— they made it. All these things she said before I interrupted her. I interrupted her as soon as I could. I said, grandmother don't be talking in that manner. She went on then in a hurried manner to speak disrespectfully of uncle Nat. She said he was a runabout. I tried to stop her, and she would notstop, and I got up and left. I think she was rather in a tearful mood. So far as I ever heard her say, or saw of her, she was very kind to her children, to all of them.

This witness objected to because not in rebuttal; but the Court held that the part which shows her dissatisfaction with the will is proper reply to the evidence of Mrs. Anders, who states that the old lady told her she had made a will, and had left her property to Nat. The other part of the evidence replies to one of the witnesses going to show that Nat was a favorite. This evidence may show that he was not an exclusive favorite.

Cross Examined.

I testified before the Ordinary the same in substance I now have done, and did not testify before the Ordinary that she said it was not her will. I testified that she said they made it, which, in substance, I think, is the same I now tell. I did not say before the Court of Ordinary that she said it was not her will. I think I testified before the Court of Ordinary that she said it was not her will; they made it. Judge Floyd was the examining counsel and was present. It was when this case was before the Court of Ordinary for the purpose of proving the will. I then testified that she was very much disturbed. When I think, she was abusing a yellow girl about going to the factory and staying too long. It may have been that she had sent the girl to the factory with some butter and eggs, and had stayed too long. I tried to quiet her all I could while I stayed, and on failing, I left.

I testified before the Court of Ordinary that no one could cheat her about butter and eggs. She said Nat was a runabout; and this conversation was a month or more before her death. Should think from the way she talked, her intellect was rather wandering and excited. She may have from the excitement said more than she intended. Should not suppose from my long acquaintance with her she was hardly capable of making a will, unless some one had wrote it for her. Can hardly say she was capable of dividing off her property, or makinga will. Her health had been very infirm, and her mind was weak, and she may have been capable of making some sort of a will before that time. My mother is living, and I am her only child, and my father is dead. The heirs at law of my grandfather were all engaged in trying to break his will. All the property I had come to me by grandfather\'s will. All the heirs, except Nat, had tried to break the will. From my general knowledge of the property owned by my grandfather, I should think if all had been set aside, she would have received as much as she did as a legatee. Should think her legacy under the will worth eight or ten thousand dollars; as an heir at law, think she would have received ten or twelve thousand dollars.

Caveators closed.

Before the commencement of the argument, Mr. J. J. Grant asked leave of the Court to correct his testimony, and on being permitted to do so, proceeded as follows:

On more mature reflection, I incline to the opinion that my grandmother said that I have got a will, but I did not make it —they made it. When I say I incline to the opinion, I mean to the best of my recollection. I am not certain, but I incline to the opinion that this was her remark. I thought it right to make this correction. It is made after more mature consideration and reflection.

Mr. Grant made this explanation, after the Caveators had closed with him the evening previous. To the admitting of the said evidence, counsel for propounder excepted, on the following grounds:

First, That the testimony of John Brown should have been rejected, he not being a subscribing witness, and no sufficient or any predicate laid for his opinion as to testamentary capacity when the will was executed.

And that the declaration of the testatrix, as to what kind of a will she wanted, there being no fraud or undue influence shown, was improperly admitted.

Secondly, That Mrs. Cheney's testimony does not fix the time of her acquaintance with testatrix; and if at all, long beforethe making of the will, and the testimony showing nothing like insanity was improperly received. And the Court...