50 S.E.2d 617 | Ga. | 1948
1. The evidence offered by the caveators to show mental incapacity of the testator was insufficient to overcome the admitted prima facie case in favor of testamentary capacity.
2. The evidence of the caveators on the question of whether the paper propounded for probate was the result of undue influence exercised over the mind of the testator failed to present an issue for the jury. It showed no more than a mere opportunity to exercise undue influence, which is not sufficient.
3. Since the evidence was insufficient to show either mental incapacity or undue influence and no legal verdict could have been rendered other than one in favor of probating the will, it is not necessary to rule on the special assignments of error.
2. We next consider the evidence to discern what facts, if any, were shown that would authorize the jury to find that the will in question was the result of undue influence exercised over the mind of the testator by Eugene A. Bailey and Annie B. Wood, *559
as alleged in the caveat. In so doing we must keep in mind the applicable rule of law that, to be sufficient to invalidate a will on the ground of undue influence, the evidence must show that such influence amounted to fear, force, overpersuasion, or coercion, to the extent of destroying the free agency and will power of the testator, and in effect made the will the mental offspring of another. Galloway v. Hogg,
The caveators have attempted to show by their evidence that because of the confidential relation and close association which existed between the testator and Annie B. Wood and Eugene A. Bailey, the will was procured by their undue influence. The evidence shows that Annie B. Wood, to whom the testator devised his home and certain items of personal property, has lived in the home and helped care for her father since 1939. Eugene A. Bailey, to whom the testator devised a one-half interest in the mercantile business, has worked in the store since 1900, and has been a partner in the business with his father since 1920. On the other hand, the caveators would see their father only occasionally the last few years of his life. William last lived in the home with his father in 1939, and thereafter would see him on the *560 average of about once a month. Mamie Bagley testified that, on several occasions when she attempted to see her father, the other children would arrange something to prevent it; that she was never permitted to see her father alone.
William F. Bailey testified that, when he heard that his father had left him out of the will, he asked Eugene if it was true, and Eugene told him that he did not care to discuss it with him; that he then made arrangements by phone to talk to his father about the will, but that he was slipped away and he didn't have an opportunity to talk with him about it. Mamie Bagley, testified that she asked her father what was in the will for her, and he replied that he couldn't remember; that her father then went to the office of the lawyer who drew the will, and when he returned he appeared to be shocked and said he didn't want to talk to her about the will at that time; that she later asked her father again about the will, and he told her that he couldn't remember and to ask Eugene; that Eugene told her that she had been left $2000, and she asked her father if that was correct, and he replied that Eugene knew what was in the will and that he didn't remember anything about it; that her father told her that she would have the interest in the home and that she would continue to receive money for her support. William F. Bailey Jr. testified that he asked the testator about the rumor that his father had been left out of the will, and that the testator replied that he would not leave any of his children out of his will.
For the purpose of showing an unequal distribution of the estate among the children, the caveators introduced evidence as to the value of the estate; however, this evidence was in sharp conflict with that offered by the propounder. Mamie Bagley testified that she had been receiving money from her father since 1939. She at first received $16 per month, but this was increased from time to time, and she was receiving $90 per month at the time of her father's death. Evidence concerning the amounts actually advanced to William Bailey by the testator was also in sharp conflict.
The witnesses for the caveators testified that the testator, in the last few years of his life, particularly since his illness in 1939, followed the line of least resistance and usually tried to acquiesce in anything that anybody suggested. Mamie Bagley testified *561 that her father left his affairs in Eugene's hands. This testimony is not inconsistent with that concerning the testator's age and physical infirmities.
The language employed in Hill v. Deal,
The caveators having admitted a prima facie case in favor of the propounder, and having then failed to carry the burden of establishing the invalidity of the will on the ground of undue influence or mental incapacity, the finding of the jury upholding the validity of the will was the only verdict which they could have legally rendered.
3. Under the foregoing ruling, a consideration of the special assignments of error becomes unnecessary.
The trial court did not err in overruling the motion for new trial.
Judgment affirmed. All the Justices concur.