Pergason v. Etcherson , 91 Ga. 785 ( 1893 )

Simmons, Justice.

1. The will was caveated on several grounds, among them that the testator was not of sound and disposing mind and memory. The caveatrix proved by her mother that when she married the testator he had no property, but was a poor man, and that as her husband he got from the estate of her father $4,500. This was objected to on the part of the propounders, on the ground that it was irrelevant and immaterial. The objection was overruled, and this ruling is alleged to be error. We agree with the trial judge that the evidence was admissible. Any fact or circumstance which would tend to show unsoundness of mind on the part of the testator was admissible in evidence. The fact may not be of much weight, but it was not for the court to judge of its weight; that was the province of the jury. The testator by his will made a liberal provision for all of his children except two daughters, to whom he gave $5 each, and left nothing to his wife, further than to direct that his son Robert should support her out of the property devised to him, this to be in lieu of dower as well as year’s support. In other words, she was to get nothing at all under the will unless she waived the provision which the law makes for the wife in all cases. We think a jury might properly consider, in passing upon the mental condition of the testator, that a husband who had derived his property or the bulk of it from his wife, might not have made a provision for her so far inconsistent with that fact, and so far different from what would be expected of a husband under such circumstances, if he had been of sound and disposing mind and memory at the time of making the will. A fact thus tending to show the unreasonableness of the will would undoubtedly have a legitimate bearing upon the question of the testator’s mental condition. The fact that the widow did not contest the will would not affect the admissibility of this evidence. It could not preclude the party attacking the will from showing that the provision made for the widow was unreasonable and indicative of mental unsoundness on the part of the testator.

2, 3. It appears from the record that at the commencement of the trial the witnesses were separated and ordered to remain outside of the court-room. During the trial one of the witnesses violated this order, and was brought before the court for contempt. The excuse offered by the witness was that Daniel, one of the counsel for the propounders, had told him that his testimony would not be used. The court accepted Ms excuse and discharged Mm. Counsel stated to the court that after the court had adjourned, they learned that the propounders had not discharged this witness; that Daniel was mistaken in thinking they would not swear the witness; that he knew but one fact, and that was a matter which no other witness had testified about and of which no mention had been made to the jury. The court refused to allow the witness to testify, and exception was taken to this ruling, and also to the action of the court in hearing the excuse of the witness in the presence of the jury. "When the witness made the statement to the court that he had been discharged as a witness, it was confirmed by counsel and the court accepted it as an excuse. Doubtless all the counsel and their clients were present when the excuse was offered and accepted, and the witness discharged and allowed to remain and hear the other testimony. Under this state of facts we do not feel authorized to interfere with the discretion of the trial judge in refusing to allow the witness to be examined. If the witness and Mr. Daniel had made a mistake as to his being discharged, the other counsel and the pro'pounders, who were doubtless present, could have corrected the mistake, and should have done so then and there. To compel the court to receive the testimony of the witness, under these circumstances, would be to virtually abrogate that section of the code which gives to either party the right to require the witnesses to be separated during the trial. It would allow a witness and counsel to entrap the court, and any order the court might give to separate the witnesses would be rendered nugatory. Under the peculiar circumstances of this case, we will not control the discretion of the court below in refusing to allow the witness to testify. The facts of this case on the point in question are not like those in the case of May v. The State, decided at the last term. 90 Ga. 793. In that case counsel asked that a brother of the accused might be allowed to remain in the court-room to assist in the defence. The solicitor-general objected; whereupon the court ruled that he must retire. Counsel for the accused then agreed not to put him on the stand as a witness, and upon this statement the court allowed him to remain. Subsequently this person was offered for the sole purpose of impeaching a witness. Under these facts it was held that the court erred in not allowing the witness to testify. Iu that ease the judge ought not to have required the agreement made that the witness should not be placed upon the stand, as a condition for allowing him to remain in the court-room, because the accused was entitled to have him present to aid in the defence, whether he was a witness or not, it being a capital case; and besides, in that case the witness was offered merely to impeach a witness for the State, while in this case the witness was offered upon a vitally important question.

There was no error in hearing the excuse of the witness in the presence of the jury.

4. When the will was offered for probate it was caveated by Mrs. Etcherson alone. Subsequently her sister Mrs. Duke asked to he made a party to the caveat, and an order was taken making her a party. Mrs. Duke filed no caveat and did not adopt the grounds of the caveat filed by Mrs. Etcherson. The verdict of the jury was, that the paper offered for probate was the last will of the testator except as to Mrs. Etcherson and Mrs. Duke, and that as to them it was made under a mistake of fact in regard to their conduct. In passing upon the motion for a new trial made] by the propounders, the court refused the motion as to Mrs. Etcherson, hut granted a new trial as to Mrs. Duke. The propounders excepted to the refusal of a new trial as to Mrs. Etcherson, and Mrs. Duke filed a cross-bill excepting to the judgment granting a new trial as to her.

There was sufficient evidence to authorize the finding as to Mrs. Etcherson. Her caveat fully set out the grounds on which the will was void as to her, among them the ground upon -which the jury predicated their finding. Rut- as before remarked, Mrs. Duke filed no caveat and did not adopt that already filed by Mrs. Etcherson; so there were no pleadings on the part of Mrs. Duke upon which the jury could base the finding in her favor ; nor was there any evidence that the will was made on account of a mistake of fact concerning her conduct. We think, therefore, that the court was right in granting a new trial as to her and in refusing one as to Mrs. Etcherson.

5. A motion for a new trial was made in term and an order taken to hear it in vacation. When the motion came on for a hearing in vacation, counsel for the respondents moved to dismiss it, for the reason set forth in the motion, which it is unnecessary to mention here. The court overruled the motion to dismiss and heard the case. After the court passed upon the motion the propounders sued out their bill of exceptions in proper time, complaining of the judgment of the court refusing to grant a new trial as to Mrs. Etcherson. Mrs. Etcher-son and Mrs. Duke sued out a cross-bill of exceptions, complaining jointly of the judgment refusing to dismiss the motion for a new trial, and Mrs. Duke complained separately of the j udgment granting a new trial as to her; but this cross-bill was not sued out in thirty days from the time of the decision refusing to dismiss the motion for a new trial. The motion to dismiss a motion for a new trial is not a motion connected with the merits of the case. The refusal to sustain such a motion is cause for a separate and independent writ of error, which should be sued out within thirty days from such refusal. If not sued out within that time, or if no exceptions are entered pendente lite, it is too late after the thirty days have expired to bring the case to this court. For this reason we cannot consider the questions made in this part of the cross-bill of exceptions.

Judgment on both bills of exceptions affirmed.