Webb v. Fleming , 30 Ga. 808 ( 1860 )

By the Court

Stephens, J.,

delivering the opinion.

1. To determine whether or not this verdict is supported by the evidence, the evidence must be applied to the different issues presented by the different grounds of caveat. The first ground is, that the testator did not sign the will in the presence of the witnesses. The evidence is, that he did sign it in the presence of the witness, Martin, and that, by his conduct, he clearly acknowledged his signature in the presence of each of the other two. And that was sufficient.

2. The second ground, that he did not sign the will, is covered by what has just been said on the first ground.

3. The third ground is, that the witnesses did not sign the will in the presence of each other. That was not necessary ; it is sufficient if each witness subscribes in the presence of the testator.

4. The fourth ground is, that the will attempts to manumit a slave, and is therefore void. The will does provide for the purchase of a slave by the executor, and her manumission afterwards, and the part of the will relating to that object is void; but the remainder is good, as has been frequently held by this Court.

5. The fifth ground is, that the will was not the free and voluntary act of the testator. In support of this ground, it was argued that the will being written by Hutchens, who is a principal legatee, strong proof was necessary to show that the testator knew the contents of the paper, but that the proof on this point was very weak.. We think the evidence on that point is satisfactory. The testator, as appears from the evidence, could read and write, and the testimony of Smith is, that when he subscribed as a witness, the testator produced the will to him. He produced the will without getting out of bed, and without assistance from anybody. He must, therefore, have had it in bed with him, actually nursing it. We think it is a fair and satisfactory conclusion that the deep interest which he manifested in the subject, led him to make use of the ample opportunity which he had of knowing the contents.

6. The sixth and last ground is, that undue influence was used in the procurement of the will. There was no evidence at all in support of this ground. We think that all of the issues presented by the caveat are either bad in law, or satisfactorily met by the evidence.

Judgment affirmed.