
    Fountain et al. v. Whatley, executor.
    No. 8395.
    May 18, 1931.
   Gilbert, J.

1. The court did not err in overruling the motion to continue the case on account.of designated absent witnesses. It was not made to appear that any of such witnesses had ever been subpoenaed. In so far as it was shown what said witnesses would testify if present, the evidence was of slight materiality and weight. The motion was also deficient in respect to the question of delay, as to the probability of securing the attendance of the witnesses, who are now in other States. None of the caveators who made the motion were sworn on the question of continuance, the motion being made entirely by counsel. Compare Benjamin v. Weintraub, 169 Ga. 770, 775 (151 S. E. 381).

2. The second special ground of the motion for a new trial, which complains that the court erred in failing to charge on the question of burden of proof with respect to mental capacity to execute a will, fails to show error. The charge is not altogether beyond criticism in respect to the burden to be carried by the propounder to show that the testatrix possessed mental capacity to make a will. However, the uncontradicted evidence showed that the testatrix did possess mental capacity to make a will. Moreover, there was no caveat based upon the ground of mental incapacity.

3. The verdict is supported by evidence.

Jtidgment affirmed.

All the Justices concur.

G. W. Foy, for plaintiffs in error.

Homer Beeland and Dan 8. Beeland, contra.  