Cook v. Washington

166 Ga. 329 | Ga. | 1928

Lead Opinion

Gilbert, J.

Wills have always been a fruitful source of litigation. It would be unnatural if one’s claim to testamentary benefaction should not weigh heavily in the mind of the claimant, and that an adverse disposition should not seem unreasonable and unjust. Indeed, the latter is calculated in many instances to produce the perfectly honest opinion that the disposition made is convincing evidence that the testator was mentally unbalanced and without testamentary capacity, or that undue influence substituted the will of another for that of the testator. Slight facts assume exaggerated importance, casting suspicion upon very worthy and natural acts and motives. No one may justly complain if a testator, having testamentary capacity, shall freely and voluntarily execute a will devising or bequeathing his property agreeably to his own wishes alone, if not contrary to law. Civil Code (1910), §§ 3832, 3834, 3838. The very nature of a will requires that it be freely and voluntarily executed. Pennington v. Kerrigan, 159 Ga. 345, 350 (125 S. E. 795).

The testatrix in this case was an aged, wealthy widow. She had no children. With her husband she had been actively engaged in business pursuits for many years, sharing with him the direction and responsibilities of conducting banking and hotel businesses, the ownership and control of extensive farm lands, and apparently other business affairs. /Certainly they had'together, by close attention and good business judgment, amassed a fortune quite unusual for their day and in their theatre of action. It is clear from the evidence that she had for many years indulged “a dream” of philanthropy; that from the fruits of an active business life she would transmit a blessing to the mountain children of the northern section of her beloved Georgia. The principle of the Christian religion »had laid strong hold upon her. Thus she hoped that her life would not have been in vain; that the blessings she had received, that the rich reward which had. come to her, through her toil and vision, would live after her. In these “dreams” her husband fully shared. Their plans were jointly made and in' perfect accord. Before his death Mr. Hunt, the husband, had expressed a wish to so provide by testamentary disposition of his estate, but, owing to legal complications due to imminent death, he declared to an attorney, in the presence of Mrs. Hunt, after a discussion of the subject with her, that if the validity of leaving more than a certain part of his estate depended upon her consent after his death, he would “just let her fix it.” In her will she faithfully carried out. the joint plan and purpose. Mrs. Hunt also evidenced in -her life and in her will her devotion to Brenau, her alma mater. Her motor-trip of about ,500 miles to Florida shortly before her death was in the interest of a Brenau endowment, and the trip doubtless hastened the end of her days. Previously she had-been the benefactor of Brenau, and by both speech and performance' had ■evidenced the abode of one of her dreams. Being childless, she had very humanly showered affection upon the child of another, •Edgar B. Dunlap. A witness, close friend of Mrs. Hunt, testified: “She mentioned Mr. Dunlap’s name, Mrs. Dunlap and the children. She was very fond of Mr. Dunlap. ''She had talked about him, in fact. When I worked at the Gainesville Drug Store she talked to me about him, and when I worked in the lobby she has talked to me about loving Ed and Kitty and the children. She said she loved Ed as good as she could her own son, because, she said, I was present when he was first born, and was the first person that had him in their' arms/ and she says, He is as near to me as my own son/ and it was a constant thing that she was talking about him being so good to her.”

Another witness testified that on one occasion when Mr. Dunlap approached, Mrs. Hunt declared, “There goes my boy.” That Mrs. Hunt called for Dunlap to write her will, remembered his past services, bequeathed bounties to his children for their education, and made provision in her will as recompense for his services, were not indications of mental weakness or of undue influence. It was evidence of her sense of justice and her sentiment of affection which had endured without a break. from the very birth of Dunlap, whom she regarded, in her affections, as her own child-§Owing to the manifold interests of the Hunts and to the fact that no child, or perhaps because no near relative, was available, Henry Washington generously and freely rendered valuable services. Mrs. Hunt declared that he even purchased farm property from her for which he had no need, but really to place much needed cash in her hands, because it worried her to borrow. If this is true, it was an act of loyal friendship which should have bound her to him with hoops of steel. As to her he was like unto one who “swearetli to his own hurt and changeth not.” Whether true or not, it was her belief, and in such circumstances the making of Washington executor of her will was no evidence of mental incapacity or of undue influence. It was an act of gratitude for past favors, .by one convinced of Washington’s ability because of proved fitness. Much stress is laid upon her bounties to Dunlap and Washington; upon her private interviews with them, to the exclusion of all- others, when- discussing with them the making of her will. Properly viewed, these acts are consistent with sound judgment and reason. Interviews, such as those mentioned in the evidence, especially with regard to making a last will and testament, would seem to require privacy. The contrary would appear unnatural and unusual, more especially upon the part of an aged woman, much enfeebled and subject to painful heart attacks. Certainly in the solemn moments when determining the disposition of her property after her death, it was no time for receiving guests whose advice had not been solicited, however close the ties may have been.

It is argued that she drank intoxicating liquors and was addicted to narcotic drugs. As already stated, she was an aged woman, physically weakened by disease. She suffered from high blood pressure, and angina pectoris. Her attacks caused intense pain. Her physician advised her to keep whisky on hand and to use it when necessary. He administered drugs to alleviate her suffering. It is not within the proprieties of this opinion for us to express any view as to the moral or legal aspect of the physician’s advice. There is no evidence which would authorize the jury to find that either intoxicants or. drugs had rendered the testatrix mentally incapable of making a valid will. Neither would they show undue influence on the part of persons who merely furnished or prescribed them. All of the attesting witnesses and three physicians who knew her and had treated her testified that she possessed an unusually strong mind. The attesting witnesses and one of the physicians swore that she was perfectly sane and calm at the time the will was executed. Another physician saw her an hour or two before she died, and swore to her sound mind. Many others who knew her in business and as employees unite in testifying to her sanity. It would be difficult to make a stronger case of complete mental capacity and freedom from the undue influence of others. The caveators introduced Erwin B.. Ledford as a witness, and proved by him that he was with Mrs. Hunt just after the Oglesby incident, the day the will was executed, and that he saw no whisky and no evidence of drunkenness except in the case of Oglesby, and that Mrs. Hunt “didn’t seem at all excited.” He was with her again the next day, the day of her death. He swore: “I never did see anything wrong with Mrs. Hunt’s mind; she was about as smart a business woman or 'man as I ever saw, . . could plan more between Saturday night and Monday morning than any dozen men I ever saw, and it was done right.” This witness was in charge of hotel improvements for Mrs. Hunt, to the extent of about $100,000. Caveators introduced C. C. Staton as a witness, and proved that he had known Mrs. Hunt ever since he was a boy and “never did see anything wrong with her mind.” He did not see her “after the day she was operated on.” Homer Gailey was sworn by the caveators, and said he had talked with Mrs. Hunt about her plan for endowing an industrial school two or three months before her death; that “she was a woman of very extraordinary mind.” The depositions of Mrs. Swain were taken by the caveators, but were introduced by the propounder. She had worked in the hotel owned by Mrs. Hunt, which was Mrs. Hunt’s residence. She knew her well, had frequent conversations with her; and shortly before her death witness took an automobile trip with her when she discussed her plans for the future. Mrs. Hunt called witness on Monday night after the will was signed, and the witness saw her several times the next day, which was the day of her death. Mrs. Swain swore: “I didn’t see anything at all wrong with her mind. . . She seemed very calm to me in her business matters. She wasn’t a woman you could excite easily— if anything happened she was very calm. . . Did not notice any excitement about her voice when she called Monday night about her supper — didn’t notice anything wrong or unusual.” Thus it is seen that caveators introduced several witnesses whose testimony counteracts the testimony of other witnesses they introduced.

What appears as a conflict consists of the opinions of non-expert witnesses who were not present at the time the will was executed; and when the facts upon which these opinions were based are examined, no real conflicts appear. “Where there is no conflict in the evidence, and that introduced with all reasonable deductions or inferences therefrom demands a particular verdict, the court may direct the jury to find for the party entitled thereto.” Civil Code (1910), § 5926. Giving to the caveators the benefit of the most favorable view of the evidence as a whole and of the legitimate inferences therefrom, the verdict in favor of setting up the will was demanded. “The mere fact that there are conflicts in the testimony does not render the direction of a verdict in favor of a party erroneous, when it appears that the conflicts are immaterial, and that, giving to the opposite party the benefit of the most favorable view of the evidence as a whole and of all legitimate inferences therefrom, the verdict against him is demanded.” Sanders Mfg. Co. v. Dollar Savings Bank, 110 Ga. 559 (2) (35 S. E. 777); Skinner v. Braswell, 126 Ga. 761 (2) (55 S. E. 914); Walters v. Walters, 151 Ga. 527, 530 (107 S. E. 492). In the last-cited case, where a physician who had known the testator all of his life testified that the testator had Bright’s disease, and that the physician didn’t believe “he would be a man of sound mind enough to write a will,” this court affirmed the direction of a verdict setting up the will. The test is whether the testator was mentally incapable or was unduly influenced at the time the will was signed. Brown v. Kendrick, 163 Ga. 149, 168-9 (135 S. E. 721), and cit. “Undue influence which operates to invalidate a will is such influence as amounts either to deception or to force and coercion, destroying free agency.” Bohler v. Hicks, 120 Ga. 800 (5) (48 S. E. 306) : Potts v. House, 6 Ga. 324 (50 Am. D. 329) ; Thompson v. Davilte, 59 Ga. 472 (3). Not all persuasion or influence'is “undue.” DeNieff v. Howell, 138 Ga. 248 (6) (75 S. E. 202); Burroughs v. Reed, 150 Ga. 724 (105 S. E. 290); Ricketson v. Ricketson, 151 Ga. 540, 544 (107 S. E. 522); Ward v. Morris, 153 Ga. 421 (3) (112 S. E. 719).

The will makes numerous bequests to her relatives, while leaving the bulk of her estate to Brenau, her alma mater, and to the University of Georgia, 'that oldest of chartered State universities, from whose classic halls so many sons have gone forth to shed lustre upon their State. She remembered her church and the Baptist Orphans Home, her physician, her nurse, her business employee, her former maid. She provided for the establishment of six scholarships in Brenau and the University of Georgia for named girls and boys. She devised a large tract of land in Hall County to the University of Georgia, to be used as a memorial to her late “beloved husband, James H. Hunt,” upon which there should be established an “Industrial School” for the “mountain boys of North. Georgia,” or in lieu thereof that the land should be sold and the -proceeds used as “a loan fund for worthy North Georgia boys and known as the James H. Hunt Loan Fund.” She also provided that two fifths of the residue of the estate be administered by the trustees of said university for the loan fund. To read the will, which heretofore appears in full,- is to be convinced that Mrs. Aurora Hunt was not only possessed of a great mind but also of a great heart; that her heart burned to shed the light of education, the power of knowledge, among the girls and boys of north Georgia. Let the light of education, the light of a new day, shine in the mountains. The evidence so demands, and the court did not err in so directing.

Judgment affirmed.

All the Justices concur, except Russell, G. J., disqualified, and Ilines, J., dissenting.

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Dissenting Opinion

Hines, J.,

dissenting. After a careful consideration of the evidence in this case, I am of the opinion that the trial judge erred in directing a verdict for the propounders. A trial judge can only direct a verdict “Where there is no conflict in the evidence, and that introduced with all reasonable deductions or inferences therefrom demands a particular verdict.” Civil Code, § 5926. It is true that immaterial conflicts do riot render the -directiori of a verdict erroneous. Sanders Mfg. Co. v. Dollar Savings Bank, 110 Ga. 559 (supra); Skinner v. Braswell, 126 Ga. 761 (supra). If, however, there is any conflict in the evidence upon a material issue in a case, the trial judge can not usurp the province' of the jury and instruct them to render a given verdict. This section ought not to be extended beyond the plain and literal meaning of its words. Williams v. State, 105 Ga. 814, 816 (32 S. E. 129, 70 Am. St. R. 82). A judge can not properly direct a verdict because he may think that the strength or weight of the evidence is on one side, or because he might grant a new trial if a verdict should be returned against what he thinks'is the preponderance of the evidence. Blackburn v. Lee, 137 Ga. 265 (73 S. E. 1). It can not be held that, because the evidence in favor of one party is weak and the evidence in favor of the other party is strong,' there is no conflict in the evidence. Such a case falls within this section. Trotter v. McKoy, 142 Ga. 820 (83 S. E. 857).

The probate of the will was caveated upon the grounds that it was executed in consequence of undue influence exercised over the testatrix, and that the testatrix was mentally incapable of executing the same. Certain undisputed facts appear in the record. The scrivener was the counsel and confidential adviser of testatrix. J. Henry Washington was her confidential business adviser, and is the nominated executor of the instrument propounded as her last will. These parties had an engagement to meet in the lobby of the hotel at which the testatrix resided, at ten o’clock on the morning of the day when the instrument was executed, for the purpose of preparing the same. When the .scrivener reached the lobby of the hotel at the time designated, Washington was not there. The scrivener awaited his arrival. Upon the arrival of Washington both went to the room of testatrix, where they were closeted with her alone and visitors were excluded from the room from shortly after 10 a. m. until 1 p. m., when both left the room of testatrix together. The attorney then went to his office to prepare the will. The attorney and the nominated executor were to return to the hotel at four o’clock, when the will was to be executed. At that hour the scrivener went to- the room of the testatrix, expecting to find Washington there. Nothing was done until the latter arrived. The witnesses to the instrument were secured by the scrivener and by the nominated executor. - Both the scrivener and the nominated executor were present at the time of the execution of the purported will.

The nominated executor is to receive a bequest of $15,000, under the seventh item of the instrument offered for probate. This item recites the existence of a confidential relationship between testatrix and the nominated executor. By the eighth item of this instrument the scrivener is to receive the sum of $5000. By the thirteenth item the testatrix gives to the two sons of the scrivener the sum of $5000 each, and makes the scrivener trustee of these funds. By the twenty-fourth item the scrivener is appointed attorney for the nominated executor. This item further provides that, irrespective of any legal matters such attorney may have to perform, he is to receive the same commission as is allowed the nominated executor. Thus these parties, who are unrelated by blood or marriage to the testatrix, are to receive larger benefits under the alleged will than all the blood relatives of the testatrix combined. The scrivener and the nominated executor had great influence over the testatrix. The scrivener had previously advised the testatrix to make a will, when she informed him that she had already done so. The will was executed about 4.30 p. m. on April 11, 1927. The testatrix died the next day. She was sixty-eight years of age, at the time the will was executed. She had been a sufferer from angina pectoris from 1914 to the date of her death. The attacks of this disease became more frequent and more distressing during this period. She suffered a severe attack on April 10, 1927, the day before the will was executed, when her physician thought she would die. These attacks greatly weakened her, She went to Florida in the latter part of February, 1927. She was there taken sick. She returned to Atlanta by train on or about March 6, 1927, and her physician was telegraphed to meet her, with a nurse, at Atlanta. He did so, and advised her to go to a hospital in Atlanta, but she went on to Gainesville. She entered a hospital at Gainesville on March 7, 1927, and was operated upon for hernia. From March 7, to March 16, 1927, while in the hospital, sixty hypodermics of morphine and seventeen drinks of whisky were administered to her. She left this hospital on March 24, and returned to her room in the hotel where she lived. She had suffered from high blood-pressure during 1926 and 1927. During the last ten days of her life her physician visited her daily, some times several times a day, and some times at night. During this period the attacks of angina pectoris became more frequent and violent. The nominated executor did not testify on the trial of this case. By the seven-' teenth item of this instrument the testator bequeathed to her “niece, Sarah Elizabeth Cook, and to each of her children and to each of her grandchildren, the sum of twenty-five hundred dollars each.” Testatrix had no such niece, but had a sister by that name, who had died in 1917. The scrivener testified that he did not know how this mistake occurred, but that in his opinion it was due to him or the stenographer to whom he dictated the terms of this instrument. Shortly before the will was executed some one called the physician of the testatrix, and told him to go to the hotel where testatrix resided, at once. He went at once to the lobby of the hotel and was asked by one Ledford if he had been called to the room of testatrix. He replied in. the negative, when Ledford told him to go to her room at once. He was present when the will was executed. He was likewise a legatee under the instrument propounded for probate.

The jury was authorized to find the following facts: The scrivener had assured the testatrix, after the death of her husband, that he could secure her social position in the city of her residence. He furnished the testatrix with intoxicating liquors. The niece of testatrix requested him not to furnish testatrix with such liquors. He replied that testatrix needed no chaperon. He advised testatrix to get rid of this niece, who had been residing with her, and this was done. This niece frequently saw testatrix and the scrivener drinking at the hotel where she resided. This niece more than once', had to undress and put the testatrix to bed after the scrivener left, because of her drinking, and because of the fact that she was tired and worn out. Testatrix drank a great'deal. She was never without intoxicating liquor. The scrivener supplied testatrix with it all the time. Whisky was found in her bathroom right after her death. On the afternoon of the day when this instrument was executed, Mrs. Banks visited the testatrix. When she got there she found the physician of testatrix sitting in the hall into which the room of the testatrix opened. This excited her very much. She then asked the doctor .if testatrix was worse, and he said, “No, possibly some better.” She then asked the doctor if she could go in to see the testatrix, and he said no, no company. Hearing something, she asked the doctor if the testatrix was busy, and he said, “In conference.” She then said to the doctor, “Will you never so.e the necessity of keeping people away from her and keeping them out of her room when she is sick?” As others were in the room, she knew she could go into see her soon. She waited in the hall, talking to the physician, and said to him, “When will you get her off these narcotics?” And she said to him, “I have asked you so many times not to give them to her,” that she didn’t want them given to her at all, and he replied that he thought she needed them then, and if she didn’t have them she would die. Witness stayed there a few minutes, when the scrivener came out of the room, and said to the doctor, “I will be back.in a minute.” When the scrivener left she started toward the door, and just as she did she heard a voice in the room. She waited again .a few minutes, when the scrivener came back with the witnesses who attested the will. She then left the hotel. She returned, and as she came back in the hotel the physician was- going out. She said, “May I go up to her room now?” . He said, “Yes,” in a most unwilling manner. Witness went to the room of testatrix, knocked and opened the door. and went in, when the testatrix rushed to her: and said, “Where have you been, where have you been ?” in a most distracted manner. Testatrix said, “Darling, Oh, I have had a most terrible day. If I have lived through this day, I know that I am going to get well.” Witness said, “My darling, I am sorry, don’t talk now, and eat your supper.” Testatrix said, “You have got to listen to me, and listen to what I say.” “I have had a most terrible clay.” She then told of.one Oglesby coming to her room in the morning,.drunk, and of a row between hijn and the scrivener. This witness testified that the testatrix was then in a state of almost delirium. This was one half to an hour after the witnesses to the will had come out of the room of testatrix. Witness testified that from the remarks of the testatrix she would not consider her capable of making a will at any time that afternoon. When this witness opened the door of testatrix, the latter’s hair was torn down and disheveled. The testatrix was accustomed always to keep herself tidy and neat. Witness hacl seen the testatrix two or three times a day since, her return from the hospital. Testatrix had not been herself. She knew that testatrix had had a perfect memory, but she would fail to remember words, and things' she wanted to tell the witness, and had been that way since her- return. This witness testified: “In my opinion I would,not consider- her capable of making a will at any time for a week before her death.” This witness testified that testatrix was not in a condition to transact any business from the time she went to Florida. She further testified that in her opinion testatrix was to a degree under the influence of a more or less powerful drug the afternoon the instrument was executed.

Mrs. Howard, a niece of testatrix, testified that she visited her aunt at the hospital after she had been operated-upon on March 9, 1927. Testatrix told her that the operation was for an old rupture which had taken place a good many years before. She found testatrix in a very weak condition both physically and mentally. Her mind was very weak and unbalanced, and she seemed doped or suffering from mental prostration. She went again to see testatrix, but the nurse would not let her see her aunt, stating that she was not allowed to have company. Testatrix returned from the hospital about March 23, or 24, 1927, and went to her room in the hotel. She saw testatrix on Saturday, March 26, after her return from the hospital, and found her condition very much worse. She was very weak in body, though she could walk some in her room, but she kept in bed most of the time. She did not seem natural or like herself. It was very clear that her mind was failing, and she talked and acted strangely. She had fallen off greatly in flesh, and looked very bad. Her talk was flighty and rambling, and she cried at times. She saw testatrix nearly every day, and some times twice a day. Each visit satisfied her that testatrix was growing weaker in body and mind, and that she could not live very long. At times her body, feet, and hands were terribly swollen. She talked flightily and out of her head. This witness testified: “In my opinion she did not have mental capacity to make a will. . . Her mind was just practically gone. During each visit it got worse and worse, at times in stupors, and at other times flighty. . . Saw her on Saturday, April 9, and she was worse than the day before, and she was not able to reason or understand the nature of a will, or to have an idea as to the disposition of her property, in my opinion.” This witness saw her on April 12, 1927, in her bedroom. She testified that she seemed very much upset, and in her opinion was not capable of making a will. She said she had made her will and left us all something. She said, ‘ They wanted me to make a will, and I made one, but I am going to get hold of it and tear it up — I forgot my father’s people in the will, and left it all to my mother’s people,’ and she then asked us if we thought it would make any difference. I did not think she had the capacity to make a will that day, or any time after her return from the hospital.

Mrs. Laura Trentham, another niece of testatrix, testified that testatrix was operated upon for hernia at the Downey hospital, that she visited her in the hospital. She found her in a very weak physical and mental condition, and her mind was very weak and unbalanced. She seemed to be doped or suffering from mental prostration. She later visited her, and was refused permission to see her, because she was not allowed to see company. She testified that testatrix returned from the hospital on March 23 or 24, 1927, and went to her room and occupied this room until her death. She saw testatrix the day of her death, and she seemed very weak in body, but could walk around; her'mind was weak, and she talked flighty, and it was clear to witness that the mind and strength of testatrix were failing fast. She seemed very weak and upset, and in the opinion of the witness testatrix was not capable of making a will. Testatrix stated to this witness that she had made a will and was not satisfied with it, and she intended to get hold of it and destroy it. Her mind seemed to he wavering, and she seemed flighty. This niece thought that testatrix was under the influence of some strong dope.

The subscribing witnesses testified that the will was freely and voluntarily executed by the testatrix, and that she was mentally capable of executing it, she being a woman of fine intelligence and good business capacity. Three medical experts testified that she was mentally capable of making the will. There were other witnesses who testified that the testatrix was a woman of fine intelligence and excellent business capacity. The scrivener testified that he wrote this will in accordance with instructions given him by the testatrix, that he read over the will to her, that she knew its contents and expressed her satisfaction therewith, and that he did not induce her to make the same.

In these circumstances was there any issue of fact to be passed upon by the jury? In the first place, was there any issue of fact upon the question of undue influence ? The presumption is strong against the party preparing a will, who takes a benefit under it; and although it will not be declared void on that account, strong evidence of intention in such case will be required. Beall v. Mann, 5 Ga. 456 (2). Where one who writes a will takes a large interest under it, and he is a stranger to the blood of the testator, the presumption of law is that the testator, although signing the will, does not know its contents. The onus, then, is upon him who propounds the will, to rebut and overcome this presumption by showing that the testator does know the contents of the will. Hughes v. Meredith, 24 Ga. 325 (71 Am. D. 127). When a will was prepared by one who takes a large benefit under it, it can not be set up without strong proof that the testator understood its provisions and assented to them. Adair v. Adair, 30 Ga. 102. “The presumption is strong against an act done by the agency of the party to be benefited, especially when the capacity of the testator at the time the will was executed was in any.degree doubtful.” Davis v. Frederick, 155 Ga. 809, 817 (118 S. E. 206). “Where a will is written or drafted by a person who takes a lagacy or devise thereunder, a presumption of undue influence is created, which he has the burden of rebutting; and this is especially true where the beneficiary writing the will also occupies a confidential relation to the testator/- 40 Cyc. 1153. “Incapacity opens the door to undue influence, and when opportunities for such influence are shown, and the favored devisees are the beneficiaries of a will unnatural in its provisions, to the exclusion of others having equal claims at least upon his bounty, very slight circumstances are sufficient to make the question of undue influence one for the -jury.” Walls v. Walls, 30 Ky. L. Rep. 948 (99 S. W. 969). It is not necessary that there be direct proof of fraud or undue influence. Such proof can seldom be produced. It is competent for the court to submit to the jury all of the circumstances covering the execution of the will; and where it appears that confidential relations' existed, as in this case, between the testatrix and the scrivener and the nominated executor of the will, it is for the jury to determine from all the evidence before it whether or not the execution of the will was the result of improper inducement or fraud. Davis v. Frederick, supra; Penniston v. Kerrigan, 159 Ga. 345, 350 (125 S. E. 795); Hagerty v. Olmstead, 39 App. D. C. 170. If an attorney draws a will'under which he takes a substantial benefit, a presumption of undue influence arises. Boyd v. Boyd, 66 Pa. 283, 294; Abbott v. Church, 288 Ill. 91 (4 A. L. R. 975, 123 N E. 306). By parity of reasoning a presumption of undue influence arises against Washington. It is generally held that when a will is executed through the intervention of a person occupying a confidential relation towards the testator, whereby such person is the executor and a large beneficiary under the will, such circumstances create a strong suspicion that an undue or fraudulent influence has been exerted, and then the law casts upon him the burden of removing the suspicion by offering proof showing that the will was the free and voluntary act of the testator. Watterson v. Watterson, 1 Head (Tenn.), 1; Maxwell v. Hill, 89 Tenn. 584 (15 S. W. 253); Coghill v. Kennedy, 119 Ala. 641 (24 So. 459); In re Everett’s Will, 153 N C. 83 (68 S. E. 924); In re Nutt’s Estate, 181 Cal. 522 (185 Pac. 393); Gaither v. Phillips, 199 Ala. 689 (10) (75 So. 295) ; Smith v. Smith, 174 Ala. 205 (56 So. 949); Hagerty v. Olmstead, supra.

“Where a person who initiated, or directly or indirectly participated in, the preparation or execution by the testator of a will in 'which he was named a beneficiary, occupied at the time relations of confidence with testator, the proponent of the will had the burden of proving that the will was not induced by coercion or fraud, directly or indirectly exercised by such'person, and, where the will was procured through the undue influence of such person, the undue influence operated against all the beneficiaries,” Smith v. Smith, supra; Gaither v. Phillips, supra. In the case at bar the scrivener was the confidential attorney and adviser of the testatrix, and is given a substantial bequest. And Washington, the confidential business adviser of the testatrix, is given a substantial legacy of $15,000, is the nominated executor of the will, and took an active part in securing its preparation and execution. In these circumstances the law presumes that this instrument was procured by undue influence or fraud on the part of the scrivener and executor, and the burden is upon them to rebut this presumption. Whether this burden was carried by the propounder, by introducing evidence to overcome the presumption, is a question of fact to be passed upon by the jury. The trial judge can not determine this question, and the direction of a verdict’under the circumstances was a usurpation of the province of the jury.

Was there an issue of fact as to the mental capacity of the testatrix to execute this will? Three witnesses for the caveators testified that in their opinion the testatrix did not possess sufficient mental capacity to make a will. Two of these witnesses were nieces of the testatrix, and the other a disinterested witness. All three witnesses gave the reasons for their opinions that the testatrix did not possess sufficient mental capacity to make a will. Mrs. Howard, a niece of the testatrix, testified that testatrix did not have the capacity to make a will at any time after her return from the hospital. She stated the facts on which she based this opinion, and these facts are set out above. Mrs. Trentham, another niece of the .testatrix, testified that in her opinion the testatrix was not capable of making a will on Tuesday, April 12, when, she saw her in her bedroom at eleven o’clock in the morning, nor at any time when she saw her after she came back from the hospital. She gave the facts upon which she based this opinion, and these facts are set out above. Mrs. Banks, a disinterested witness', testified that in her opinion the testatrix was incapable of 'making a will at any time for a week before her death. The facts on which she based this opinion are fully set out above. Where witnesses state the appearance, conduct, conversation, or other particular facts from which the state of testator’s mind may be inferred, they can express their belief or opinion upon his mental capacity, as the result of those facts. Potts v. House, 6 Ga. 324 (supra). Where the issue is devisavit vel non, the witnesses, whether attesting the will or not, may give their opinion as to- the testamentary capacity of the deceased, provided it is accompanied with the facts as to the conduct, conversation, or condition of the deceased, upon which the opinion rests. Walker v. Walker, 14 Ga. 242 (8). Where a witness states how the testator appeared and acted, the last time he saw him, describes his manner and conversation, and then gives his opinion from the facts stated, this opinion is admissible. Dennis v. Weekes, 51 Ga. 24. Witnesses who stated that they knew the grantor, saw her, and heard her talk, could state their opinions as to her-sanity, based on such facts; it being for the jury to determine whether §uch reasons were satisfactory. Frizzell v. Reed, 77 Ga. 724 (5). “It is well settled that a non-expert witness may give his opinion as to the sanity of another person, based upon his acquaintance with him and the manner, appearance, and conduct of such person during the time that the witness has known him.” Glover v. State, 129 Ga. 717 (5) (59 S. E. 816); Harris v. State, 155 Ga. 405 (4) (117 S. E. 460); Compton v. Porterfield, 155 Ga. 480 (117 S. E. 464); Dyar v. Dyar, 161 Ga. 615 (131 S. E. 535). The sufficiency of the reasons of the witnesses for their opinions is not a question for the court, but for the jury, in estimating the weight to which the opinions are entitled. Gray v. Obear, 59 Ga. 675; Central Railroad v. Senn, 73 Ga. 705; Frizzell v. Reed, supra; Blackman v. State, 80 Ga. 785 (7 S. E. 626); Hubbard v. Rutherford, 148 Ga. 238 (96 S. E. 327); Pennington v. Perry, 156 Ga. 103 (9), 105 (118 S. E. 710).

In view of the familiar principles of law above stated, the conclusion seems inevitable that there is conflict in the evidence in this case upon the issues raised by the caveat. Witnesses who had known testatrix for many years, who had observed her appearance and conduct, and who had heard her talk, testified that in their -opinion shé was mentally incapable of making a will. The facts upon which these opinions were based are given. In .the -cases referred to above this court has held that' these facts -authorized the witnesses to give their opinions based thereon; and that the weight to be given these opinions was a matter for the jury, and not for the court. Thus we have competent opinions based upon competent facts. In these circumstances it must be huid that there is .conflict in the evidence; and this is especially true when these opinions, with the facts on which they are based, are weighed with other facts appearing in the record. The testatrix was of advanced age. She had been suhering from attacks of angina pectoris for a number of years. Those attacks had become more frequent and violent during the latter years of her life. She had had a very serious attack the day before this instrument was executed. The physician testified that he expected her to die from these attacks, and that these attacks greatly reduced her strength. She had been at a hospital and had undergone a serious operation a little more than a month before she died. For ten days preceding her death her physician had attended her daily, and some times as much as three visits a day, and some times he attended her at night. This indicates the seriousness of her last illness. The evidence authorized a finding that she was addicted to the use of drugs, and that her physician had stated the day her will was executed that in his opinion she would have to have hypodermic injections of morphine to prevent her from dying. 'So when we take the opinion of the witnesses, based upon given facts, and consider the above and other circumstances which appear in the record, it seems impossible to arrive at the conclusion that there was no conflict in the evidence relating to the issues raised by the caveat in this case. This being so, the trial judge erred in directing a verdict. Wood v. Bellamy, 154 Ga. 431 (114 S. E. 579). So I feel compelled to dissent from the opinion of the majority in this case.