Cox v. Rutledge , 18 Ga. 294 ( 1855 )

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] Was the Court right in excluding so much of the testimony of. Thomas Granberry, as explained the origin, nature and extent of the “badfeeling” exhibited by Mrs. Rutledge, toward one of her step-children, and caveators of the will ?

Counsel for the caveators had drawn from the witness the fact, that this hostility was, or at least had been, entertained. He conceived it to be legitimate testimony; and we think it was. Here was a marriage, bringing together two ‘sets of' children — those of the husband and those of the wife — by by their former marriages. A will is made, discriminating. largely in favor of the present wife, and against the children-by the first wife. It is alleged to have been produced by the-'undue influence of the wife over the testator, who was a feeble and infirm old man. Is it not natural, under such circumstances, . to inquire into the character of the relations which existed between the last wife and the step-children?

Upon reading the will, and seeing the difference in the testator’s bounty, would not the question occur to the mind — are these the children of the testator’s wife ? And could you not show that they were not, in order to account for the difference in the testamentary bequests to her and to them ?

And if so, would you not pass, by an easy step, to the further fact, as to the state of feeling between the parties ? I know, from observation, that step-mothers and step-children,, as well as mothers-in-law and daughters-in-law, are natural-enemies. There are, however, exceptional cases. And to their credit be it spoken, there are some step-mothers who, to the world at least, exhibit the same kindness to their stepchildren as to their own offspring.

If such were the terms upon which this family lived, might it not have been proven? And if the contrary was true, 'might it not have been shown ?

We are clear, therefore, that Counsel for the caveators asked a proper question, when they interrogated the witness, Granberry, as to the enmity between' Mrs. Rutledge and one-of the caveators. And we are equally well satisfied, that the Court should have permitted the examination to have been prosecuted further; and that the witness should have been allowed, as he was proceeding to do when stopped by Counsel, to have explained the cause and extent of the difficulty..

Suppose it should have turned out, as we have reason, to conjecture it would, from another part of the record, that whatever unkind feeling may have been engendered, it had long since passed away and been forgiven and forgotten, would not the Jury had a right to infer that it had ceased to operate as a motive for causing to be made anlunequal will?-'

It is like the case of a Juror who, by the expression of crude and unformed opinion, disqualifies himself to sit on the-trial; but upon further examination, it is found that the language he used, was the mere ebullition of the moment; and he is pronounced by the Court or triers, a competent Juror..

We further affirm the judgment upon every other assign-" ment but the first, and regret that wc are forced, by the imperative terms of the Transcendental and Judicial Perfectability Act of the last Legislature, to remand the cause for re-hearing, upon this ground.