Harris v. Harris , 53 Ga. 678 ( 1875 )

Trippe, Judge.

1. There was a general exception to the entire charge of the court. The charge embraced many distinct questions of law. In Smith et al. vs. Atwood, 14 Georgia, 404, and frequently since, it was held that such au exception is not proper, but the plaintiff, in assigning error, must specify the portions of the charge to which he excepts. In behalf of this rule it may be said, that justice to the opposite party and to this court requires that there should be a specification of the errors which are intended to be complained of.

2. In this case this rule should be specially adhered to. Certain portions of the charge-were pi'oposed to be argued as being erroneous, and the record did not contain the evidence on which those parts of thé charge were founded. The difficulty of intelligently and properly considering sueli is apparent, and great injustice might result from the attempt to do so.

3. There is nothing in the evidence act of 1866 which excepts from its operation an executor or legatee who is offered as a witness on the trial of an issue of devisavit vel non: See 36 Georgia, 568.

4, 5. Section 2418 of the Code declares: “In all cases, a knowledge of the contents of the paper by the testator is necessary to its validity; but usually, when a testator can read and write, his signature.or the acknowledgement of his signature, is sufficient.” The same section further provides: “If, however, the scrivener or his immediate relations are large beneficiaries under the will, greater proof will be necessary to show a knowledge of the contents by the testator.”

6. The court, in this case, charged the jury upon this latter clause of this section that there should be strong proof that the testator knew the contents of the paper and assented to them, and declined to charge that the evidence should be both strong and conclusive. This cannot be error. The statute does not require that in such a case the evidence must be conclusive. Such a test of the strength of evidence is hardly exacted in any case. The Code says greater proof will be necessary. That does not mean conclusive. When the judge, in connection with this section, told the jury that the proof should be strong, and declined to use the word'conelusive, he met all the law required of him.

7. Upon the exception to the charge in reference ro the matter of alleged alteration, it is sufficient' to say that it was left fairly to the jury. Under the evidence on this point, it was a question not for the court to decide, that an apparent difference in the handwriting of a line' or two of the will was a circumstance of suspicion against the will. It was sufficient to say that it was a circumstance they might consider in coming to a conclusion as to its validity. The testimony did not authorize the court to go farther than it did.

8. A great portion of the last request made by the caveator for the court to charge, was included in the general instructions which had already been given to the jury. There was another part of it which included a hypothesis of facts not authorized by the evidence. It is never error to decline to charge such a request. A charge of the court, and all parts of it, should grow out of the proof before the jury.

Judgment affirmed.