Hodo v. Jenkins , 209 Ga. 4 ( 1952 )

Duckworth, Chief Justice.

The exception here is to the direction of a verdict, on an appeal to the superior court, against the caveators and in favor of the propounder of the will of Susie Hodo. The three subscribing witnesses testified to the execution of the will and the sound mental condition of the testatrix at the time she executed it. The only attempt to challenge this evidence was proof of heavy drinking of the testatrix. Witnesses to this condition saw her frequently, one seeing her daily, but none saw her at the time the will was executed nor at a time preceding or following that event near enough to infer that she was mentally incapable because of intoxication at the time she signed the will. The only other evidence relied upon to show error in the direction of the verdict was that of previous statements by the subscribing witnesses to counsel for the caveators, which contradict their testimony on the trial in three particulars, to wit: (1) as to the clothes worn by the testatrix when the will was signed, (2) whether it was signed in a bedroom or the living room of her home, and (3) the date on which it was executed. None of these nor all combined were relevant to the real issue of whether or not the testatrix was mentally capable of signing the will. For this reason, even if impeaching, such proof was not as to a material issue (Watts v. Starr, 86 Ga. 392, 12 S. E. 585; Central Railroad & Bkg. Co. v. Maltsby, 90 Ga. 630, 16 S. E. 953; Georgia Railroad & Bkg. Co. A. Andrews, 125 Ga. 85, 54 S. E. 76); and the evidence would not have authorized a verdict in favor of the caveators. Code, § 110-104; Mitchell v. Miller, 183 Ga. 703 (189 S. E. 523); Summer v. Strayhom, 186 Ga. 755 (199 S. E. 108); Stepp v. Stepp, 195 Ga. 595 (25 S. E. 2d, 6). No other error is assigned.

No. 17796. Submitted March 10, 1952 Decided April 14, 1952. Clifford A. Crawford, Byron H. Mathews Jr., Myer Goldberg and Iienry N. Payton, for plaintiffs in error. Wm. Y. Atkinson Jr. and J. L. Glover, contra.

Judgment affirmed.

All the Justices concur.