Denmark v. Rushing

Head, Justice.

The Code, § 113-304, provides: “If a subscribing witness is also a legatee or a devisee under the will, the witness shall be competent, but the legacy or devise shall be void.”

In Smith v. Crotty, 112 Ga. 905 (38 S. E. 110), this court held: “That the testimony of one named in a nuncupative will as legatee is essential to lawfully proving the making thereof does not render his legacy void.” This opinion was not by a full bench, one Justice being absent. Justice Lumpkin, in announcing the court’s decision in Smith v. Crotty, supra, reasoned that the section of the Code which is…