Brock v. Brock , 1913 Ga. LEXIS 189 ( 1913 )

Beck, J.

Hattie 0. Brock offered.for probate in solemn form the will of her sister, Lila M. Brock. The propounder was named in the will as executor, and was also a legatee under the will. A caveat was.filed by C. H. Brock and Mrs. Stovall, containing several grounds; among them, that the will was not duly executed, that the testator did not have sufficient mental capacity to execute a will, and that at the time of the execution of the will she was . unduly influenced to make the will offered by the chief beneficiary under the provisions of the instrument. On the trial of the case in the superior court the jury rendered a verdict in favor of the propounder, and the caveators made a motion for a new trial, which •was overruled.

1, 2. On the trial of the ease all of the subscribing witnesses were called by the propounder and sworn. One of them testified that he did not remember whether the testator signed the will in the presence of the subscribing witnesses or not. The other two attesting witnesses denied that the testator signed the will in their •presence. The propounder of the will was sworn as a witness in her own behalf, and testified positively that the testator did sign the will in the presence of the attesting witnesses. No objection .was made to the introduction of this testimony on the ground of the incompetency of the witness, nor is there any ground of the motion for a new trial based upon the contention that this evidence 'was improperly admitted; but counsel in his brief contends that the evidence of the propounder was illegal and had no probative value. We think otherwise. Her interest in the case may go to her credit, but it did not render her incompetent, nor did it entirely destroy the probative value of her testimony, the weight of which was a question for the jury. They had the right to believe her testimony, and, believing it, to find that the testator did sign the will, in the presence of the subscribing witnesses. Civil Code, § 5858; Gillis v. Gillis, 96 Ga. 1, 15 (23 S. E. 107, 30 L. R. A. 143, 51 Am. St. R. 21); Buchanan v. Simpson Grocery Co., 105 Ga. 393 (31 S. E. 105); Deupree v. Deupree, 45 Ga. 415.

3-5. The rulings made in the third, fourth, and fifth headnotes require no elaboration.

Judgment affirmed.

All the Justices concur.