Hall v. Hall , 18 Ga. 40 ( 1855 )

By the Court.

Starnes, J.

delivering the opinion.

[1.] The meaning of the Statute of Frauds, in requiring a will to be attested by three or more credible witnesses, according to the charge of the Court below, was not that the same was to be established only by these witnesses, and'could not be set up by other testimony, but was, that the witnesses were not to be idiots, lunatics or persons convicted of crime. If this construction be taken in connection with the context, with the whole case, it is not erroneous. The language used in confining the exception to “ idiots, lunatics or persons convicted of crime,” may have been too restricted; but it was plainly employed by way of illustration. The meaning clearly was, that the word credible was used in the sense of competent; that the will might be proven, therefore, by testimony opposed to that of the' subscribing witnesses. In this sense, we think the Jury must have understood the charge; and in this sense, it was correct.

We know that there has been some dispute upon this subject; but the better opinion is as we state it.

“ A will may be pronounced for though both the attesting witnesses depose,to the incapacity of the deceased.” LeBreton vs. Fletcher, (2 Hagg. 558.)

“By credible witnesses in the Statute of Frauds, competent witnesses are to be understood.” Amory vs. Fellows, (6 Mass. 219.)

[2.] Exception is also taken to the following charge of the Court: “ A will may be proven and will be valid though the witnesses may swear to the incapacity of the testator. The witnesses may swear falsely, or they may believe more capacity to be required than the law holds to be necessary. But if sufficiently proven by the evidence, the will should be set up.”

It was urged that the Court here put emphasis upon the fact, that the subscribing witnesses might swear falsely, and said nothing as to the possibility of the other witnesses swearing falsely — thus unfairly leaving the Jury to infer that the attesting witnesses in this case had sworn falsely.

It is, to our minds, very plain, that the Court used these words also in illustration. Besides, the proposition was put in the alternative. The witnesses “may swear falsely” he said, .or they “ may believe more capacity required than the law holds to be necessary.” And. he referred to these as things, one of which might exist, as a reason why the will should be pronounced for, though the attesting witnesses had sworn to the incapacity of the. testator.

We see nothing unfair or improper in the charge, as it is thus presented by the record.

[3.] It was argued, that the.Court also erred in not granting a new trial, because the verdict was contrary to evidence, in this: that there was no legal presence of the testator, at the time the will was attested by the witnesses; inasmuch as (it was insisted) he had relapsed into insensibility before the same Avas signed by them.

This point was not made in the proceedings before the Court below, and does not-appear in the assignment of errors. Regularly, therefore, it ought not to be urged before us. But Ave Avill deal Avith it more closely.

Thz prima facie, proof is, that this instrument Ayas legally signed by the witnesses in the presence of the testator; for the attesting Avitnesses so certify by their attestation, and so swear in the evidence Avhich they have given. If this is negatived, it should be by clear and definite contradiction. This does not appear in the record; but resort is had to vague and indirect inference. In consideration of the testimony, as it is presented by the record, the only legitimate inference therefrom, in our opinion, is, that the attestation and signing of the Avitnesses occurred Avhen the testator had been aroused to consciousness for the purpose of having his will executed.'

[4.] We see nothing in the evidence to authorize the conclusion, that the Avill avrs obtained by improper importunity, or that the testator Avas not of disposing mind and memory. Nor can we agree, that what he said on the occasion “ sounds in folly.” That Avhich may appear unreasonable is susceptible of explanation; and taking all the circumstances into consideration, avo think the Jury did Avkatwas right in sustaining the Avill.

Though very ill — though in a sinking and dying condition, yet, it appears to us that Avhat time his attention Avas aroused and given to the purpose of making his Avill, his mind acted definitely, and Avith discriminating judgment. It is clear, that ho knew the contents of Avhat Avas Avritten as his will by Dr. Stone; he showed by what he said and directed, that he comprehended his relative situation to his family and connexions, their relations to him and claims upon, him; that before the will Avas finally executed, his mind acted upon and understood the nature of the estate ho Avas conveying, and that he disposed of the same with understanding and Avith reason. These arc decisive tests of sufficient testamentary capacity. (6 Co. 23, a. 4 Burn. E. L. 49. Herbert vs. Lowns, 1 Ch. R. 24. Right vs. Price, 1 Doug. 241. March vs. Tyrrell & Harding, 84. Terry vs. Buffington and another, 11 Ga. 337.)

Let the judgment be affirmed.