The Savannah morning news. (Savannah, Ga.) 1900-current, 1900-08-04
WITNESS AND LEGATEE.
CAN ONE PERSON OCCUPY BOTH
POSITIONS IN REGARD TO A WILL.

POSITIONS IN REGARD TO WILT
Interesting Question of Law Raised
in superior Court-AppeaI From
Judge FerriII's Decision, Admit
VIII of Bridget CuIeane, Made the
Issue-Dora Smith, the Sole Lega-
tee Under the VIII, Was One of
the witnesses to It's Execution and
II Was Contended That She Could
Not Be Both-ContinuedU Until Mon
day.
Judge Falligant and a jury were engaged
Yesterday in the trial of the case involving
the probate in solemn form of the nuncu-
pative will of Bridget Culcane, or Ander-
SON In the Court of Ordinary the will
had been probated and it was on appeal
from the decision of Judge Ferrill, admit
ting the will 10 probate, that the case had
come before Judge Falligant.
The case involves an estate amounting
in value to about $1,000. which belonged
10 an old woman, Bridget Culcane, or, as
she was sometimes called, Anderson, who
died in the early part of the present year
The old woman lived by herself in a tum-
ble-down house in the eastern section of
the city, and died from the effects of the
fright produced by the efforts of a negro
desperate to enter her dwelling through
the window. She never recovered from
this fright and died within few days fol-
lowing the occurrence.
After her death a nuncupa tive will, that
is, one not committed to writing, but made
by word of mouth and on her dying bed
was admitted to probate in common form
The will directed that the old woman's as
tate should go, after her death, to Dora
Smith, woman living in the neighbor-
hood who had been kind to her in life and
watched and nursed her during her last
days on earth. The law re-
CURES that nuncupative will
shall be proved by the evidence of
proved. One of the Witnesses, however,
was also the sole beneficiary and when
the will was Offered for probate in solemn
form in the Court of Ordinary, a caveat
TO the application was filed by Agnes
Crotty, the niece and sole heir-at-law of
the dead woman and testatrix. Judge
Ferrill dismissed the caveat and admitted
the will to probate.
The case was appealed to the Superior
Court and it was heard on yesterday.
During the morning session the evidence
for the proponent of the will was con-
cluded, and at this stage of the case Col.
P. W. Meldrim, who conducted it for the
caveatrix, moved the court to direct the
jury to return a verdict, declaring that
Bridget Culcane died in condition of
intestacy.
This motion was made on the ground
that the law required three witnesses to
the execution of a nuncupative will and
that but three had been produced, one
of whom was the sole legatee under its
provisions Col. Meldrim's contention was
that beneficiary under will could not
take, if he or she were also one of the
witnesses to its execution, and that for
this reason the legacy to the proponent
was void. As it was the only legacy the
whole will was void. While, the bene-
ficiary was a competent witness to prove
the execution of the will. commended Col
Meldrim, she could not take any legacy
that ii bestowed upon her.
In answer to this contention and in op-
position to Col Meldrim's motion, Mr..
w. H. Wade, appearing for the propon
ent, argued that the section of the code
which prohibited an attesting witness
10 the execution of the will, referred only
20 subscribing Witnesses, those. that is,
who signed the will in the presence of
the testator and each other AS the code
made use of the word subscribing" it
was evidently meant to be exclusive of
Wills in which there could be no subscrib-
ing witnesses from the very nature of
the case. and that. therefore, nuncupa-
tive wills were not meant, nor benef1-
Charles under nuncupative wills prevented
from taking their legacies by reason OF
the fact than they were also witnesses
to the execution
The molten was argued at both the
morning and afternoon session, Col Mel
drfm opening and concluding When the
erd of the arguments was reached, Judge
F7lligant announced that he would over
rule the motion and permit the question
to go to the jury, under instruction en-
bodying his view of the law
The Introduce ton of evidence on behalf
of the cavea,rix was then taken up and
continued until the adjournment of court,
In the early evening. At the adjourn
ment Judge Felligant announced that the
case would go over until Monday morn
ing. as to-day would be consumed by
work at chambers and the hearing and
consideration of evidence and arguments
upon a number of cas,s that are assign
ed for this morning.
The point raised by Col. Meldrfms mo-
ton is one of the most interesting from
a legal standpoint, that has been recently
discussed in the courts of Savannah and
Chatham county. The fact that Judge
Fallgant overruled the motion can
scarcely be taken to mean that he dsa-
grees entirely with Col Meldrim's conten-
ton, as he may give In charge to the
Jury principles OF law virtually alike
those counsel for the caveatrix has de"
clared to be correct.