Cox, propounder, &c. vs. Rutledge et al.

No. 34.-JAMES Cox, propounder, &c. plaintiff in error, vs. JOSEPH RUTLEDGE and others, defendants in error.

[1.] A will is propounded for probate, discriminating largely in favor of testator's wife, and against his children by a former wife; amongst other grounds of caveat, undue influence by the wife is alleged. A witness testified, at the instance of the caveators, that "bad feeling" had existed between the step-mother and one of the step-children, who was a caveator; the witness was proceeding to explain the origin and extent of the enmity, when he was arrested by the Court, by the request of Counsel for the caveators: Held, that the explanation should have been admitted, and that for withholding this testimony, a new trial must be granted under the Act of

1853-4.

Appeal from Ordinary, in Harris Superior Court. Tried before Judge PERKINS, March Term, 1855.

This was an appeal from the judgment of the Ordinary, admitting to probate, the will of James Rutledge. All the questions made are included in the motion for a new trial.

The following are the grounds taken :

1st. That the Court erred in this: that having, on motion of Counsel for caveators, permitted the witness, Thomas Granberry, to state that Mrs. Rutledge said she had unkind feelings on her part, towards a portion of the Rutledges, the caveators; the Court then refused to permit the witness, on motion of Counsel for propounders, to state the reasons which explained the existence of such bad feelings, given in the

same statement.

2d. That the Court erred in rejecting all evidence of the existence of unhappy conjugal relations between the deceased, James Rutledge, and his former wife, the mother of the cavea

tors.

3d. That the Court erred, when having, on motion of propounder's Counsel, given the Jury the following charge, viz: "Fraud is not to be presumed by the Jury, but to be proved to their satisfaction, before they can find against the will on that ground." The Court immediately followed up this

Cox, propounder, &c. vs. Rutledge et al.

charge with the following expression, viz: "I give you this charge, and also charge that fraud may be proved, by the proof of circumstances which indieate fraud, the existence of which is inconsistent, without the existence of fraud."

4th. That the Court erred, when, having on motion of propounder's Counsel, given the Jury the following charge, viz: "Undue influence is not to be presumed, but must be satisfactorily shown, before the Jury can find against the will on that ground; and that argument, persuasion or fair and flattering speeches to the testator, to induce him to make the will, are not unlawful and constitute, in themselves, no valid objection to the will." The Court immediately followed up this charge with the repetition of the following expression, which had been before given in charge to the Jury, viz: "But you must consider the condition of the testator's mind, and determine whether such arguments, persuasions or flattering speeches, were used in such a way as to amount to moral coercion."

5th. That the Court erred in charging the Jury the following supposed state of facts, viz: "For instance, the persevering importunities of a wife who will take no denial, pressed upon an old, feeble, sick man, on his death bed, with his mind impaired, and body racked with pain, and he, in order to buy his peace, makes his will in her favor, such will would be void for undue influence."

6th. That the Court erred in charging the Jury, that if they believe, from the evidence, that the legatees had received their distributive shares after said will had been proved and admitted to record in common form, then they could not contest the same, until they returned the legacies; but if the will had never been proved and admitted to record in common form, they are not bound so to do before contesting it; remarking also, that there was no evidence before the Jury that said will had been proved in common form.

7th. That said verdict is contrary to law and contrary to evidence.

The motion was over-ruled by the Court; to which decision, Counsel for caveators excepted.

Cox, propounder, &c. vs. Rutledge et al.

The following was the will:

STATE OF GEORGIA, HARRIS COUNTY:

In the name of God; Amen: I, James Rutledge, of said State and County, being sick, and knowing that it is appointed for man to die, and feeling that my dissolution is near, and being of sound mind and disposing memory, do make and ordain this, my last will and testament, in the following manner, to wit: First, I commend my soul, my immortal part, to God, the author of all good, and recommend my body to be interred according to the custom of family burials. Amen.

Item 1st.-It is my will and desire, that my just debts be paid by my executors, hereinafter named, as early as possible.

Item 2d.-I give and bequeath unto my beloved wife, Emilina Rutledge, two lots of land, one whereon my residence now stands, number not known, and the lot lying due south of it, extending down to Shoal Academy or near thereto, number not known, both lots, together, containing four hundred acres, more or less. Also, one of two wagons, allowing her to make her own selection; one ox-cart, the pleasure carriage and carriage horses, two choice mules, buggy and harness, three sows and pigs, three cows and calves, one yoke of oxen, all my household furniture, (except two beds and furniture,) 'my kitchen furniture and as many farming tools as she wishes, and the gold watch and chain that she usually wears, and the following named negro slaves, to wit: Sarah and her five children, Jasper, Columbus, Washington, Georgia Ann, Sarah Frances and Daniel, John and Andrew, and also, yellow girl Anna; also corn,' meat and fodder sufficient for herself and family for one year's support. I will and bequeath the above specified property to my wife Emilina, absolute, to hold, use, enjoy or dispose of, as she may desire, forever. I also desire, that my wife shall have the gin, fan and running gear to the gin house.

Item 3d. I will and bequeath to my grand-son and daughter, William and Eugenia Caroline, children of my son, John

Cox, propounder, &c. vs. Rutledge et al.

Rutledge, two bedsteads, beds, bedding and also five hundred dollars in money.

Item 4th.-I will and desire, that my entire estate, both real and personal, not disposed of by legacy, be sold at public sale, and the proceeds applied as hereinafter directed—said sale to be for a credit of twelve months.

Item 5th.-I give and bequeath to my daughter, Ann Lee, one thousand dollars, to be invested in property for her use during her life, and at her death, to the use of the lawful heirs of her body, under the direction of my executor, hereinafter named.

Item 6th.-I will and desire, that the residue of the proceeds of the sale of my property, after settling and paying my bequests above specified, be equally divided between my sons, John Rutledge, James Rutledge, and my daughter Ann Lée, and my son Joseph Rutledge, such of them as are in life, and to the lawful children of such as are dead.

Item 7th.-I desire and appoint James Cox trustee for my daughter, Ann Lee, and desire that he take all the interest in legacies, bequests, &c. given her, into his control and management, and manage for her interest during her life; and at her death, continue his trust, for the use and benefit of her children, until they shall arrive at the lawful age of twentyone years.

And lastly, I appoint James Cox my executor, to execute and carry out this, my last will and testament, hereby revoking all wills, either verbal or written, heretofore made.

In testimony whereof, I do hereby acknowledge this, my last will, given under my hand and seal. In presence of JOSEPH A. COLLIER, JAMES RUTLEDGE, [L. S.]

JAMES M. LOWE,

NATHAN PASSMORE,

THOS. P. PARK,

This 5th February, 1853.

VOL. XVIII-38

Cox, propounder, &c. vs. Rutledge et al.

JOSEPH A. COLLIER: Knew James. Rutledge, deceased, from the time he moved into Harris County; had seen him often; was intimate with him; was frequently at his house. Measles, overseer of testator, came for him to go to testator's house, about his last will and testament; he went immediately after receiving the message-found one or two gentlemen there when he arrived; Passmore and Lowe were there. James Rutledge informed him, when he came into the room, that he had sent for him to witness his will. Mrs. Rutledge was not in the room at the time. The will was dictated, from beginning to end, by James Rutledge; and after it was finished, Dr. Park read it over distinctly to him. Rutledge said it was "all right," and signed it in the presence of the subscribing witnesses. He seemed as much in his mind as witness ever knew him. Witness saw no evidence of mental weakness on the part of testator-attested the will in the presence of testator and the other subscribing witnesses; they also signed it in his, testator's, and each other's presence. The will was written by Passmore and Dr. Park. Mrs. Rutledge is a lady of high, moral character-was a kind and attentive wife. After the will was finished and read over by Dr. Park, deceased made a correction, then requested prayer. Witness came at the request of Measles, overseer of testator, about the will; deceased wished to make a bequest to two little grand-children, and remarked, either that he had forgotten or that he did not know the given name of one of them—a little girl; requested witness to go and ask Mrs. Rutledge; witness did so; Mrs. Rutledge told him that she did not remember the name-to go and ask Sarah; Sarah told witness the name; Sarah is an old family slave; witness having learned the name, went back to deceased and told him the name, and deceased again went on with his dictation; Mrs. Rutledge came into the room once during the writing of the will remained but a very short time-whispered something to deceased and went out of the room; after she went out, deceased again went on with the dictation, where he had left off when Mrs. Rutledge came. The instrument propounded.