1. Where exceptions pendente lite are filed by the plaintiff in error in the court below to orders overruling general and special demurrers and striking a plea in abatement, they cannot be considered by this court where no error is assigned thereon, either in the main bill of exceptions, or in this court on a separate assignment of error before argument. Kennedy v. Walker, 156 Ga. 711 (1) (120 S. E. 105); Smith v. Albright-England Co., 171 Ga. 544 (2) (156 S. E. 313). In the instant case, the exceptions pendente lite are merely specified as a part of the record, without any assignment of error in the main bill of exceptions on the exceptions pendente lite or on the orders therein complained of; nor was there a separate assignment of error thereon in this court. The question as to the right of the defendant in error to caveat the will, as raised by the demurrers, is not before us for decision.
2. The evidence was entirely insufficient to support the contention of the caveatrix that she was entitled, by reason of a contract of adoption, to caveat the will of the testatrix.
3. Where, in the instant case, on the trial of a caveat to the probate of a will in solemn form, there were, under the charge of the court, two questions to be determined by the jury--first, was the caveatrix the adopted daughter of the testatrix? and second, did the testatrix have sufficient mental capacity to execute the will?--and where the jury were instructed that they would have to determine the first question in favor of the caveatrix before they could pass on the second question, and where the evidence was wholly insufficient to support the verdict in favor of the caveatrix on the first issue, the verdict in her favor on the second issue was contrary to law.
4. A charge on an issue not warranted by the evidence should not be given to the jury. Hastings v. Hastings, 175 Ga. 805 (2) (166 S. E. 192). The instructions of the court on certain legal principles relating to contracts to adopt a child, as complained of in special grounds 1 to 3 inclusive of the motion for a new trial, were not warranted by the evidence, and it was error to charge in this regard.
5. Having held that the jury were unauthorized to pass on the issue of the mental capacity of the testatrix to make a will, the charge complained of in special ground 4 was erroneous.
6. It was error to overrule the propounder's motion for a new trial as amended.
A general demurrer of the propounder to the caveat was disallowed on the filing of an amendment by the caveatrix, wherein she alleged: that she was the natural child of Mr. and Mrs. John Keeter; that her mother died when she was an infant; that Mr. and Mrs. C. E. Keeter (the latter being the same person as Mrs. Minnie Josie Keeter) took her and raised her under an understanding and agreement with her parents that they would adopt her as their own child; and she had fully performed every obligation on her part. Over these objections, the ordinary probated the will in solemn form. Thereupon the caveatrix filed an appeal to the superior court, and twice amended her caveat. In these amendments, she alleged that she was the daughter of the testatrix by virtual adoption. The propounder filed general and special demurrers to the caveat and amendments thereto. The court overruled the general demurrers and certain special demurrers, and overruled other special demurrers. The propounder also filed a plea in abatement, which was stricken. The propounder filed exceptions pendente lite to these orders.
At the beginning of the trial, the caveatrix in writing admitted a prima facie case in favor of the propounder as to the execution of the will, and assumed the burden of proof of her grounds of caveat.
The court withdrew the issue on the question of undue influence, and submitted the case to the jury on two questions: first, whether or not the caveatrix was the adopted daughter of the testatrix; and second, whether or not the testatrix had sufficient mental capacity to execute the will. The court instructed the jury that, before they could pass on the second issue, they must find in favor of the caveatrix on the first issue. The jury returned a verdict in favor of the caveatrix on both issues, declaring the caveatrix to be the adopted daughter of the testatrix, and refusing to probate the will. The propounder filed a motion for a new trial, and subsequently amended it by adding four grounds. Special grounds 1 to 3 inclusive complain of the court's charge in reference to the essentials of a valid contract for the adoption of the child; and special ground 4 asserts that the court erred in charging the jury Code 113-106, which relates to the right of a testator to make by will any disposition of his property not inconsistent with the laws or contrary to the policy of the State, and his right to bequeath his entire estate to strangers, to the exclusion of his wife and children; but provides that in such cases the will should be closely scrutinized, and upon the slightest evidence of aberration of intellect, or collusion or fraud, or any undue influence or unfair dealing, probate should be refused. The motion for a new trial was overruled, and the case is here on exceptions to that order. In the bill of exceptions, the exceptions pendente lite filed by the propounder are specified as a part of the record, and they appear in the transcript thereof. However, the bill of exceptions contains no assignment of error, either on the exceptions pendente lite or on the rulings therein complained of.
1, 3-6. These headnotes do not require any elaboration.
Mrs. Sue Morrow, a sister of the caveatrix, testified that the caveatrix was about one and a half years old when her mother died, and the witness and her father moved to North Carolina. The caveatrix lived with Mr. and Mrs. C. E. Keeter until her marriage. The witness heard the testatrix many times refer to the caveatrix as her daughter, and that she was given to her by the mother of Mrs. Martin, but never heard her speak of her as her adopted daughter.
The caveatrix testified that the home of Mr. and Mrs. C. E. Keeter was the only one she ever knew, she having lived with them until her marriage.
There is no evidence in the record that either Mr. or Mrs. C. E. Keeter ever made any contract or agreement with the parents of the caveatrix, or either of them, to adopt her. Taking all the evidence in this regard in the light most favorable to the caveatrix, all that it shows is that Mr. and Mrs. C. E. Keeter raised and cared for the caveatrix as if she was their daughter. This evidence is wholly insufficient to support the finding of the jury that the caveatrix was the child of the testatrix by reason of a contract to adopt.
For the reason pointed out above, and in the headnotes, it was error for the trial court to overrule the propounder's motion for a new trial as amended.
Judgment reversed. All the Justices concur, except Atkinson, P. J., Wyatt and Candler, JJ., who dissent.