
    Hopkins et al. v. Brumbelow.
   Reid, Chief Justice.

The exception in this case is to the first grant of a new trial, after a trial in the Superior court on appeal .from the court of ordinary between the propounders of the will of A. M. Brumbelow and certain of his heirs who had filed a caveat. The basis of attack on the will was the claim that the testator was not of sound and disposing mind and had not sufficient mental capacity to make a will. The Jury found in favor of the caveators, denying probate of the will. No question is presented except as to whether the judge abused his discretion in granting the new trial, and whether the evidence demanded a verdict for the caveators. The judge in his order recited that in his opinion “the issues made in this case should be passed upon by another jury.” Held:

Where the evidence on the main question in the case is in conflict, and where the jury would have been authorized, as in the instant case, to render a verdict for the movants (the propounders), the judgment granting the first new trial will not be disturbed by this court. Although there was evidence to the contrary, each of the subscribing witnesses to the will testified that the testator was in full possession of his mental faculties at the time the will was executed and understood the effect of the disposition of his property. Code, § 6-1608; Sparks v. Noyes, 64 Ga. 437; Cox v. Grady, 132 Ga. 368 (64 S. E. 262); Murray v. Davidson, 174 Ga. 213 (2) (162 S. E. 526); Dublin Fertilizer Works v. Frost, 147 Ga. 328 (93 S. E. 895); Watson v. Equitable Mortgage Co., 112 Ga. 253 (37 S. E. 363); McCain v. College Park, 112 Ga. 701 (37 S. E. 971); Purser v. Thompson, 135 Ga. 732 (70 S. E. 569); International Harvester Co. v. Felton, 56 Ga. App. 290 (5) (192 S. E. 464); Smith v. Perry, 176 Ga. 775 (168 S. E. 770); Mitchell v. West End Park Co., 177 Ga. 449 (170 S. E. 376); Webb v. Nobles, 195 Ga. 287 (2) (24 S. E. 2d, 27).

No. 14405.

February 9, 1943.

G. B. Walker, William E. Spence, and H. A. Allen, for plaintiffs in error.

J. V. Poole and E. A. Wright, contra.

Judgment affirmed.

All the Justices concur.  