32 S.E.2d 171 | Ga. | 1944
The general grounds of the motion for new trial are abandoned, and the exceptions to the charge and to the exclusion of the evidence, dealt with in the opinion, fail to show any reversible error.
2. "Upon the trial of an issue arising upon the propounding of a will and a caveat thereto, the burden, in the first instance, is upon the propounder of the alleged will to make out a prima facie case, by showing the factum of the will, and that at the time of its execution the testator apparently had sufficient mental capacity to make it, and in making it acted freely and voluntarily. When this is done, the burden of proof shifts to the caveator." Oxford v. Oxford,
3. The court charged: "If you find, from the evidence, that the propounder has made out a prima facie case, then the burden would be shifted to the caveators to show that, at the time of the execution of the alleged will [the testator] was suffering from mental incapacity to make a will, and was also suffering from monomania." This language is criticized for the reason, as contended, that it placed the burden upon the caveators of showing, not only that the testator was insane and therefore incapable of making a will, but also that the will was the result of a monomania from which the testator was suffering, whereas proof of either one would have been sufficient. Immediately following this excerpt, the court defined testamentary capacity, and immediately thereafter gave this additional charge: "If you find, from the evidence, that [the testator] did not have mental capacity, which I have defined to you, or that he was suffering from monomania at the time and that the will was the result of the monomania, then, the paper offered for probate would not be his will." Later, the court also gave the following charge: "If you find, from the evidence, at the time the will offered in evidence was executed that [the testator] did not have sufficient mental capacity generally to make a will, or that he was suffering from monomania at the time and that the will was the result of the monomania, . . then you will return a verdict accordingly, that is, a verdict in favor of the caveators against the propounder." Again, the court charged: "If the propounder in this case has made out a prima facie case . . then the burden would be shifted upon the caveators to show general insanity or mental incapacity, or that [the testator] was suffering from monomania, and that he was incapable and incapacitated *480
from making a will, under the rules of law I have given you in charge as to making a will, under the law and under the evidence in this case." The court also charged separately on the effect of insanity and of monomania in the execution of a will. Virtually the identical question now presented was before this court inFranklin v. First National Bank of Atlanta,
4. The court gave the following charge: "Gentlemen, if you find from the evidence, at the time the will offered in evidence was executed, *481 that [the testator] did not have sufficient mental capacity generally to make a will, or that he was suffering from monomania at the time and that the will was the result of the monomania,under the law as I have given you in charge, then you will return a verdict accordingly, that is, a verdict in favor of the caveators against the propounder. But if you find from the evidence in this case, that at the time the will was executed that generally [the testator] was of sound and disposing mind and memory, that he had sufficient mental capacity to make a will,under the law I have given you, then it should be set up as the last will and testament of [the testator] by the jury." The only exception is in the following language: "Movants contend that the charge was error, harmful and prejudicial, for the reason that the law requires that a testator at the time of the execution of a will must be of sound and disposing mind and memory, and not [of] sufficient mental capacity generally to make a will, but that he must be of sound and disposing mind and memory at the time of the execution of the will, and must have a decided and rational desire as to the disposition of his property." In this excerpt the court did in effect charge the jury that, in order to find for the will, they must find that the testator was of general sound and disposing mind and memory (as distinguished from monomania) at the time the will was executed, and that he had sufficient general mental capacity to make a will under the law given to the jury by the court. In the subsequent portion of the excerpt excepted to, in which the word "generally" was again used, the court also expressly referred to the time at which the will was executed and added the words, "that he had sufficient mental capacity to make a will," and in this connection referred to the already defined testamentary capacity in the language of the Code, § 113-202, as follows: "An incapacity to contract may coexist with a capacity to make a will. The amount of intellect necessary to constitute testamentary capacity is that which is necessary to enable the party to have a decided and rational desire as to the disposition of his property. His desire must be decided, as distinguished from the wavering, vacillating fancies of a distempered intellect. It must be rational, as distinguished from the ravings of a madman, the silly pratings of an idiot, the childish whims of imbecility, or the excited vagaries of a drunkard." The charge must be considered *482 as a whole, and the excerpt complained of, in referring to "sufficient mental capacity," related it to the definition thereof previously given. Consequently, the charge seems not only to conform to the requirements of the law, but also to meet fully the criticism directed against it.
5. Exception is taken to the exclusion from evidence of a certified copy of lunacy proceedings against the testator, filed in the court of ordinary of Haralson County, on November 9, 1940, the petition reciting that he had no relatives; a guardian ad litem having been appointed, who waived notice and agreed to a hearing instanter, and the commission appointed having made their findings; and a judgment having been entered, adjudging him to be a lunatic and committing him to the State Sanitarium, all on November 9, 1940, upon which an order was entered on November 18, 1940, reciting that it now appears that the alleged lunatic has as many as three relatives residing in Carroll County, and the order setting aside and vacating said judgment of commitment. This ruling was complained of for the reason that it would have shown that the testator was insane and adjudged insane a year before the execution of the will; and the presumption of the law would be that he continued in that condition, and the burden would then have been upon the propounder to show sufficient mental capacity to make a will. In Allen v. Barnwell,
6. Exception is taken to the refusal to admit in evidence the depositions of the two physicians and the attorney who comprised the jury commissioned by the court of ordinary to determine as to the insanity of the testator, which depositions were offered "to show that they examined, tried, and found [testator] insane on November 9, 1940." The two physicians testified in the case. Consequently, in no event could there have been error in excluding their depositions generally so far as they related to their opinions as to the testator's sanity, concerning which they both testified. The attorney was a lay witness as to the question of insanity, and his opinion on this question, if accompanied by the facts on which it was founded, would have been admissible.Morgan v. Bell,
Judgment affirmed. All the Justices concur.