163 Ga. 149 | Ga. | 1926
W. R. Brown died on January 13, 1925. On February 2, 1925, Tula P. Kendrick and William B. Reeves filed for probate an instrument purporting to be the last will and testament of W. R. Brown, with a codicil thereto. This instrument was executed on July 28, 1924, and named Mrs. Kendrick as sole executrix. The codicil was executed on August 19, 1924, and William B. Reeves was thereby made a joint executor of the instrument purporting to be the last will of W. R. Brown. Lawrence Brown, Mrs. Nell Walker Freeman, Mrs. Ruby Walker Brazelton, and Miss Leone Walker, the last by next friend, filed a caveat to the probate, on the grounds: (1) that the testator was not of sound and disposing mind; (2) that the testator executed said will and codicil when he was mentally incompetent to make a valid will, and had been in such condition for more than a year prior thereto, and that said condition continued until the time of his death; (3) that the testator did not execute said will and codicil freely and voluntarily, but was moved to make the same by undue influence and persuasions over him by J. D. Kendrick and W. B. Reeves, for which reason it was not the will of the said W. R. Brown. On September 8,. 1925, the .caveat was amended by the following allegations: For about eighteen months prior to the execution of said alleged will the mental capacity of W. R. Brown was greatly impaired and was continually growing worse. During that time he sojourned alternately in the homes of W. B. Reeves, one of the nominated executors, and J. D. Kendrick, one of his heirs at law and the husband of the other nominated executor. Reeves and Kendrick, by impressing- Brown with an
On the trial the jury found in favor of the propounders and against the caveators. The caveators moved for a new trial upon the general grounds. By an amendment to their motion they added eleven grounds, one of which is as follows: Caveators offered in evidence two letters from William B. Beeves, propounder, to Lawrence Brown, caveator. The first of these was dated, At
The other special grounds will sufficiently appear in divisions 3 to 12, inclusive. The court overruled the motion for new trial, and the caveators excepted.
Were the letters of Beeves, who was one of the propounders of the paper offered for probate, and one of the nominated executors thereof and a legatee under the same, and written to Lawrence Brown, one of the caveators, admissible when offered by the caveators to impeach the alleged will; these letters having been written prior to the execution of this instrument and before the writer was made a legatee and before he was named as executor of the instrument propounded for probate? The trial judge rejected these letters, and the caveators complain of this ruling. In support of their contentions they rely on the cases of Harvey v. Anderson, 12 Ga. 69, Williamson v. Nabers, 14 Ga. 286, Morris v. Stokes, 21 Ga. 552, Jackson v. Jackson, 32 Ga. 325, Dennis v. Weekes, 46 Ga. 514, Dennis v. Weekes, 51 Ga. 24, and Ginn v. Ginn, 142 Ga. 420 (83 S. E. 118). In each of these cases the statements or admissions were made after the execution of the paper propounded for probate, and all of them had reference to the conduct or acts of the executors or legatees as to some matter relevant to the issue of devisavit vel non, except Williamson v.
The Civil Code, § 3870, lays down the rule as follows: “On the investigation of an issue of devisavit vel non, the admission of an executor before qualification, or of a legatee (unless the
But it is insisted that when a person is both executor and a legatee his admissions or declarations are admissible to impeach the will. This contention is based upon the proposition that an individual who is both an executor and legatee has a greater interest in the probate of the will than he would have if he were only executor or legatee, and that for this reason his admissions or declarations would have greater weight than if made by him as executor or legatee only. The vice in this argument is that a person has no interest under a will as legatee or executor until the instrument is executed. These letters were written prior to the execution of the will of the testator. In the first of these letters the writer stated that the mind of the testator was very bad at times, that he showed very little affection for any one, that the writer did not believe that testator would last long in his present condition, that if he should his mind would leave him, that the property of the testator was depreciating because testator could not give it attention, that testator would let no one look after it for him, that testator had always shown much affection for the writer, but that he was unable to do much with him. None of these statements have reference to any acts or conduct of the writer in procuring the execution of this will. In the second letter the writer stated that he hardly thought it fair to the addressee to be kept in ignorance of the testator’s condition when it was so
But it is urged that the writer of these letters was a party to the proceeding to probate this will, and that the statements made therein were admissible when offered by the caveators. It is true that “The admission of a party to the record is admissible in evidence when offered by the other side, except in the following cases: 1. In case of a mere nominal party or naked trustee. 2. Where there are several parties with no joint interest, the admissions of one can' not be received, unless the issue is of such a character that the effect of the admission can be restrained to him alone. 3. The admissons of any trustee before he is clothed with the trust. 4. Defendants in fi. fa. in claim cases, after the pendency of litigation.” Civil Code (1910), § 5776. The statements in these letters were made by the executor before he became clothed with the trust, and they fall within the third exception in the section just quoted.
Caveators called William B. Beeves, propounder, to the stand and questioned him, stating that they called him as an opposite party for cross-examination under section .5879 of the Code. After the conclusion of his testimony caveators again offered the letters already referred to, which had already been excluded from the evidence upon objection by counsel for the propounders. Counsel for the propouñders objected to their introduction upon the grounds: (1) that if they were impeaching of any of the testimony delivered by this witness, he was not the opposite party in the meaning of the Code; and (2) that the letters did not impeach anything to which the witness had testified. Counsel for caveators then stated that the letters were not offered for the purpose of impeachment only, but that they were offered in the light of the testimony of the witness upon the theory upon which they
Mrs. Tula P. Kendrick, one of the propounders, testified in their behalf about an occasion on which the testator was brought home sick, when she said he was unconscious, and she stated that Doctor Virginius Brown attended him at the time, and that Doctor White was also there when the witness reached home that afternoon. She then testified that she had testified at the hearing in this case before the ordinary, and that two of the counsel for the caveators were there; and further: “It seems I have informed these counsel, or made a statement in their presence heretofore, that these two doctors were there that night.” Counsel for the caveators objected to this testimony, upon the ground that it was hearsay evidence and a self-serving declaration. The court overruled this objection and admitted this testimony. Clearly this testimony was not hearsay. It does not rest mainly upon the veracity and competency of other persons. Civil Code (1910), § 5762. It does not appear to be a self-serving declaration. The court admitted it solely for the purpose of showing knowledge on the part of the caveators that the doctors were. present on the occasion testified about by this witness. We can not say that the admission of this testimony for this purpose was erroneous for the reasons assigned.
The court charged the jury as follows: “The burden of proof in the case originally rests on the propounders, that is on Mrs. Tula P. Kendrick and W. B. Beeves, on those persons who bring the papers here and say this is the will of W. B. Brown. The burden of proof originally is with the propounders, and they must show you the factum of the will, that is, the execution of the will, in the presence of the three attesting witnesses, the testator signing and subscribing in the presence of each other and the testator; and they must go further and show you the apparent soundness of mind of the testator, his apparent mental capacity. Now they
If the court, in instructing the jury upon the burden resting on the propounders in the first instance, should have charged them that the burden was also on the propounders to show that the will was freely and voluntarily made, this omission was afterwards supplied and the error was corrected. After giving the charge complained of, the court instructed the jury as follows: “Gentlemen of the jury, my attention is called to an omission that I thought I put in my charge. I charged you that the initial burden when
The court charged the jury as follows: “If he did have that capacity, then it makes no difference to you how he disposed of it. He could have given it all to you or to me, if he had sufficient capacity to make a will. But you can consider the people to whom he disposed of the property, the ties of blood or affection between him and the legatees, in arriving at a solution of the question as to whether he had sufficient capacity; but having once arrived at that conclusion, then I charge you it is nothing to you as to how he disposed of his property; it was his property and he had a right to give it to whom he pleased, if he had sufficient capacity to make a will.” The caveators except to this charge upon the grounds: (a) that it excluded frqm the 'consideration of the jury the unreasonableness of the disposition of the whether the will was procured by undue influence; estate of the testator in and (b) that the language “it is nothing to you as to how he disposed of his property; it was his property and he had a right to give it to whom he pleased, if he had sufficient capacity to make a will,” was an unduly strong statement against their contentions in this case, and Was calculated to impress the jury and did impress them with the idea that the court thought that their contentions that they should not have been left out of the will were not to be considered at all by the jury in determining whether the will was freely and voluntarily made. We do not think this charge was erroneous for any of the reasons assigned. The court was not telling the jury what they should consider in deciding this question, but on the contrary was telling them that, after they had reached the conclusion that the testator was of sound mind at the time he executed the will, they could not set aside the will because the disposition he made of his estate was unreasonable. A man of sound mind can make an unreasonable disposition of his estate, if he acts freely. The trial judge should always, upon request, charge the jury specially as to any fact relied on by either party which is true and material, so that the jury might be advised by the court of its legal effect and application to the issue they are trying. Chastain v. Robinson, 30 Ga. 55.
The court charged the jury as follows: “I am also requested to charge you this, which I do: The testimony of W. B. Beeves does not have the effect of an admission binding on the propounders. You consider his testimony along with all the other evidence in the case. You remember Mr. Beeves is one of the propounders, and he was also on the witness stand. Now, the testimony of Mr. Beeves is to be taken like any other witness in the case, just like the testimony of Mrs. Kendrick, or anybody else in the case; but what he says is not an admission that binds Mrs. Kendrick, or any other legatee on the one side or the other. It is admitted for your consideration for whatever it may be worth, not as an admission as binding on anybody, but having that force, weight, and credit to which the jury think it entitled.” Caveators except to this charge upon the ground that it is an incorrect statement of the law, in that the admissions of Beeves in his testimony should have been considered as admissions of a party to the record and binding as such; and because it was error to instruct the jury that the testimony of Beeves was admitted for their consideration for what it was worth, not as admissions binding on anybody. W. B. Beeves, one of the propounders, was called to the stand by the caveators, and cross-examined as the opposite party under the Civil Code (1910), § 5879. Caveators contend that under these circumstances his testimony was not to be taken like that of any other witness in the case, but that the jury should have been allowed to consider the circumstances under which he was called, and to take
In this instruction the court did not instruct the jury that they must give the same credit to Eeeves as they would to any other witness in the case. The court did not undertake to tell the jury what weight the jury should give to his testimony. The court was dealing with the question whether any admissions made by Eeeves in his testimony would bind and conclude the propounders; and he instructed the jury that any such admissions made by Eeeves in his testimony would not conclude the propounders. He told the jury that his testimony was to be taken like the testimony of the other propounder or any other witness in the case. He then told the jury how this was to be done; and that was, that the jury should give such force, weight, and credit to this witness’s testimony as they thought it was entitled to. There can be no doubt of the proposition that any admissions made by one propounder of a will in his testimony would not conclude his copropounder and the legatees under the will. Nothing to the contrary of this proposition was laid down in Lucas v. Lucas, 30 Ga. 191 (76 Am. D. 642). In that case it was held that “The nominated executor and propounder of a will is a legal party on behalf of the legatees, to conduct the litigation involved in a caveat to the will, from the beginning to a final adjudication.” Undoubtedly the nominated executor is a proper party to conduct the proceeding to probate a will. That is the extent of the holding in the case cited. But that case is not authority for the proposition that where two nominated executors propound a will for probate, the testimony or admissions of one of the propounders, when examined by the caveators under section 5879, supra, would be conclusive upon the propounders or the legatees. The court properly instructed the
The court charged the jury as follows: “I am requested to give you this charge: I charge you that a will should be freely and voluntarily executed; but this does not mean that a will should be refused probate merely because a person suggests to another that he malee a will, nor even suggests what ought to go into the will; nor merely because such person persuades the maker of the instrument to leave him or some one else a legacy or to make him his executor or coexecutor. Honest intercession, even, does not invalidate a will, even if it causes a man to make alterations in his original will, nor acts of kindness done to him about to make a will.” Caveators except to this charge upon the grounds: (a) that it is an incorrect statement of the law; (b) that it invaded the province of the jury in instructing them as to the force, weight, and effect of evidence in the case; (c) that it was argumentative; (d) that it unduly stressed the contentions of the propounders, without any corresponding stress upon the contentions of the caveators. The propositions of law embraced in this instruction are sound. The court charged the jury that a will should be freely and voluntarily executed. This was a correct statement of the law. He then instructed the jury that the will should not be refused probate merely upon any of the grounds mentioned in this instruction. Clearly this part of the instruction was sound law. Potts v. House, 6 Ga. 324 (50 Am. D. 329); Walker v. Hunter, 17 Ga. 364; Morris v. Stokes, 21 Ga. 552; Jackson v. Jackson, 32 Ga. 325.
The court charged the jury .as follows: “If a paper purporting on its face to be a codicil to an existing will which the testator had previously signed refers to the will in such a way as to unequivocally identify it as the instrument to which the paper in question is intended as a codicil, it will be presumed that the testator at the time of executing the codicil knew the contents of
In the tenth ground of the motion the caveators complain that the charge of the court, as a whole, did not present the eon
Caveators complain of the following charge to the jury: “Now, in order for the lack of capacity to make a will, or overturn this will, or in order for undue influence to overturn this will, you must be satisfied that the lack of capacity to make a will existed and was in operation at the time the will was made, not three months before or three years before that, or three months after that, or three years afterwards, but the undue influence must exist at the time of the making of the will; in other words, the will when made must have been the result of undue influence.” The errors assigned are: (a) that this instruction is not a correct statement of the law; (b) that it was not properly adjusted to the issues made by the pleadings and evidence; (c) that the jury were given to understand that, in order for undue influence to overturn the will, lack of capacity to make a will must have existed and been in operation at the time the will was made, whereas a will may be invalid on account of undue influence; (d) that it was calculated to give the jury to understand that neither lack of capacity nor undue influence alone could invalidate a will, but that both must concur; and (e) that the language, “must be satisfied that the lack of capacity to make a will existed and was in operation at the time the will was made,” and “in other words, the will when made, must have been the result of undue influence,” was calculated to convey to the mind of the jury the idea that undue influence, in order to invalidate the will, must have been exerted when the will was made. The principle of law laid down in this instruction is the well-settled law in this state. For either lack of mental capacity or of undue influence to invalidate a will, the lack of capacity or the existence of undue influence must exist at the time the instrument is executed; and in case of undue influence, it must operate at the time the paper is executed. While, for the purpose of shedding light upon the state of the testator’s mind
The verdict is supported by the evidence.
Judgment affirmed.