Baker v. Wright , 37 Ga. 327 ( 1867 )

Harris, J.

1. A new trial having been moved for in this case, it became necessary under the rules of the Superior Courts, that a brief of the testimony in the cause should be filed. The cohnsel of the respective parties not agreeing as to the correctness of said brief, the points of disagreements were necessarily to be determined by the presiding Judge. The brief as filed was approved by him. Subsequently to such approval the party not agreeing in the first instance to its accuracy, moved to amend the same upon the affidavit of a witness whose testimony had been incorporated in said brief. The motion to amend on affidavit should have been made before the approval by the Judge; the correction proposed to be made should have been before him at the time he passed upon the matters of disagreement between the counsel. Áhy other practice it seems to us would be productive of evils, at least of inconveniences, tending greatly to retard the despatch and regularity of business. The Judge did not, in our opinion, err in refusing to hear the motion to amend the brief of testimony at the time it was made.

2. The case tried was the propounding for probate the codicil to a will. The witnesses to the will and codicil were the same persons; both instruments were executed the same year, though not on the same day; the subscribing witnesses proved equal mental capacity in testatrix at the respective execution of both instruments. The will had been admitted to probate, it was uncontested, no one questioning her capacity to make it.

It seems that she was induced, when, as the evidence abundantly evinces, she had not sufficient mental capacity to know or consider the consequences of it, to give an assent to the destruction of the codicil. Notwithstanding the jury found for the caveators — a new trial was moved for by the propounders, and granted.

The testimony of the subscribing witnesses to both instruments clearly exhibiting her mental capacity to make them, and to have been equally as good when she made the codicil as when she made the will, and the further fact being also shown that she was incapable of volition at the time of her assent being extorted to the destruction of the codicil, we cannot but regard the verdict as against the evidence, and that the ends of justice required it to be set aside. The venire de novo was we think rightly awarded.

Judgment affirmed.