165 Ga. 451 | Ga. | 1928
Henry H. Tucker died leaving a will, under the terms of which all of his property was given to Miss Martha A. S. Shannon. Mrs. Henrietta T. Cooper, a sister of the testator, filed a caveat to the probate of the will. This caveat raised the question of the testamentary capacity of the testator, and upon that issue the case was tried. Hpon appeal to the superior court the jury returned a verdict in favor of the will. The caveatrix made a motion for new trial, which was overruled, and she excepted.
The original motion for new trial contains the usual general grounds. By amendment several grounds were added, containing exceptions to rulings made pending the trial, and assigning errors upon certain charges of the court, as well as upon the refusal of requests to charge, duly offered by the movant. The first ground of the amendment to the motion assigns error upon a ruling sustaining objections of counsel for propounder to the following question
The second ground of the amendment to the motion for new trial is as follows: “Because upon the trial of said case the following occurred: While the movant was on the stand testifying in her own behalf, and during the course of her cross-examination by counsel for the propounder of the alleged will, the following occurred: Q. 'Your mother then drew her will and made your brother, the alleged testator, and you executors of that will?’ A. 'Yes/ Q. 'Now, that was in 1899?’ A. 'I don’t remember when the will was made. She died in 1904/ Q. ' Of course, during the time from 1880 until your father’s death in 1899, he had an opportunity of observing his son’s conduct, did he not; and from the time when these troubles began, as you say, with Mr. Henry Tucker, your mother had from that until 1899, which is nineteen years, to observe him, did she not?’ A. 'Yes/ Q. 'Before she made you executor with your brother ?’ A. 'Because ’ — • Q. 'Well, you'can’t go into what was in some one’s else mind.’ A. 'I am giving you what was in my mind.’ At this point the jury was excused for the remainder of the day, and the following occurred in the absence of the jury.
“ Gov. Slaton: ' I am only asking for the facts, not what anybody’s opinion or conclusion was, and your honor has ruled that she can not testify what motive actuated her mother.’
“The Court: 'Mrs. Cooper, tell us what the explanation was you want to make.’ The witness: 'My mother left my brother executor of her will and left me executrix because she said he could do nothing without me, and that I would keep the thing straight. She said she could not bear to slap him in the face and show she had no confidence in him/
“Q. (By Mr. Jones) : 'Did your father have anything to say about it?’ A. 'The same thing. He said, “If I don’t trust my
“Gov. Slaton: ‘Now, we move to rule that out.’
“The Court: ‘I will sustain the objection. I rule that Mrs. Cooper could not explain why her father or mother appointed Mr. Henry Tucker as executor.’
“Mr. Jones: ‘Before your honor brings the jury back, I want to complete the record on that, and will ask her a few more questions.’ Q. ‘Mrs. Cooper, did you or not hear any discussion between your father and mother before your father’s will was made, as to the appointment by your father of your brother, Henry Tucker, as executor of his will?’ A. ‘I did.’ Q. ‘In that discussion did your father assign any reason as to why he wanted to do it or was expecting to do it? What reason did he give?’ A, ‘Well, he said: “This is my only son. I have done everything on earth I could for him. Of course I know he is not competent; but if I show my lack of confidence in him, who else will have any confidence in him?” He said: “I know there is no danger in leaving him as executor, because his mother can always influence him, and she can keep him from doing any crazjr thing with it; and for that reason, for the benefit of the public, I am going to leave him as my executor.” He told me that a great many times.’ Q. ‘Now, Mrs. Cooper, with reference to the appointment of your brother as coexecutor with you under the will of your mother; were you present when that will was discussed with Judge Hillyer and with your mother ?’ A. ‘I went with her.’ Q. ‘ Who drew her will.’ A. ‘Judge George Hillyer.’ Q. ‘At the time of the drawing of that will, or prior to that time, did she make any statement to you about why she was going to appoint your brother as coexecutor with you?’ A. ‘Yes, sir, many times.’ Q. ‘State what she said with respect to that.’ A. ‘Well, she said: “I am going to leave you two joint executors. I can’t bear to reflect on him; but if I leave you as executor with him, he can’t do any crazy thing with it; you are there to restrain him.” I said:
At the conclusion of the examination of the witness covering the questions above indicated, counsel for caveatrix said to the court: “That is the testimony that we expect to elicit by these questions, and that, I understand, you have ruled out.” To this statement by counsel the court made no response; but we will treat this as a properly made exception to the exclusion of the matters elicited by the examination set out above. While some parts of this evidence might have been admissible, portions of it were certainly objectionable. It contained in part mere conclusions of the parents of the testator and the caveatrix; and though some of these conclusions might be admissible to show the opinion of „the deceased parents as to the mental condition.of the son, some of the statements made by the parents, and sought to be intro
The third ground of the amendment to the motion is as follows: “Because upon the trial of the said case the following occurred: While Mr. J. J. Spalding, a witness in behalf of movant, was op the stand, and after he had testified, upon direct examination, that in his opinion Mr. EL H. Tucker was not of sound mind and did not have testamentary capacity in the years 1902 and 1903, and after he had also testified, upon cross-examination, that during those years lie had, as attorney for Mrs. Cooper, movant, brought a partition proceeding against said IT. IT. Tucker, in which proceeding he had no guardian ad litem appointed for Mr. Tucker as an irresponsible person, and also that he had had a deed made by Mr. Tucker, made directly by Mr. Tucker to Mrs. Cooper, to one half of the estate that she was to get from her mother, the jury was excused by the court, and the following occurred: Mr. Spalding: c Governor Slaton was asking me about Mr. King and I being familiar with the law and having brought a suit without having a guardian ad litem appointed, and having taken a deed from a man whom I testified that I did not think had testamentary capacity to make a will. I want to state the reason that that was done. When Dr. Cooper brought the case to me and employed me for Mrs. Cooper, he said, “Henry Tucker is crazy, and he is liable to kill you.” I said: “Why, then he ought to be put in the asylum if he is crazy.” lie said: “No, I won’t have that.” He said that Dr. Elkin, who was then, or had been, a trustee-in the State Sanitarium, had told him that if -he went there and he got out, he would come back and kill them, kill the whole Cooper family, and he said that he didn’t want anything of that kind to happen, and he said: “There is a provision under his mother’s will that his property goes to him for life, and if he didn’t have any children it goes to my wife; and if I put him in the asylum, the public will say I put him in the asylum to .keep him from marrying and having children so that my wife would get the property.” He said: “Now, I want you to separate this prop-, erty and get it in shape so that my wife can handle whatever she
“Mr. Jones: £I want to ask these questions in the presence of the jury.’
“Gov. Slaton: £In order to avoid any trouble, I will withdraw the question and the answer of Mr. Spalding with reference to which testimony is now offered.’
“After argument pro and con, the court ruled: £Of course, the court will permit you to withdraw it, but I am going to rule on this evidence the same as I have ruled, and sustain the objection.’
“Mr. Jones: £I ask permission to do this, to recall this jury, and for me to ask these questions; and then if your honor rules that out, let him withdraw the question in the presence of the jury. I think I am entitled to that.’ At this point the jury returned to the box. Q. (By Mr. Jones.) £Mr. Spalding, in reply to á question by Governor Slaton, you stated that as attorney for Mrs. Cooper you took a deed from H. H. Tucker to her half of the property in this division, and that you did not have a guardian ad litem appointed for Tucker. I want you to state to the jury the reason why you did that.’ Governor Slaton: £I object to that, because it goes into the mind of the witness, because it is a conclusion, and for the further reason that your honor has ruled on that.’ The court: £What is the purpose of this testimony, Mr. Jones?’ Mr. Jones: “The purpose of this now is to explain the reason actuating this witness in doing that very thing, in other words, not having a guardian ad litem appointed for a man whom he believed to be at the time incapable of making a will.’ The court: £The court will sustain the objection made by Gov. Slaton.’
“Governor Slaton: £I want, for reasons which your honor knows, to withdraw the question to Mr. Spalding, and his answer, regarding the appointment of a guardian ad litem and the taking of a deed.’ The court: ‘Gentlemen of the jury, the counsel
“Mr. Jones: ‘I want it understood, your honor, to complete this record, that I insist on my right to ask that question anyhow, and that I am not consenting to the sustaining of his objection! The court: ‘Well, do you renew the question?’ Mr. Jones: ‘Yes sir! The court: ‘And do you object, Gov. Slaton?’ Gov. Slaton: ‘Yes sir! The court: ‘Well, the court sustains the objection!
“Movant insists that said judgment sustaining the objection to said testimony of the witness, J. J. Spalding, explaining Ms reasons for accepting the deed from H. H. Tucker and for not having a guardian ad litem appointed for him in the partition proceeding, was error for the reason that said evidence was admissible as explaining the reasons and conduct of the witness, notwithstanding his opinion that the said H. H. Tucker was of unsound mind.” The ruling made above, in reference to the second ground, is applicable in principle and controlling upon the question involved by the assignment of error in the third ground.
The rulings made in the 4th and 5th headnotes require no elaboration.
Error is assigned upon the refusal of a request to charge the jury in the language following: “And now I charge you that rules have been established by the law for the distribution of property upon the death of its owner intestate, — that is to say, without leaving a will; and one of the rules provides that in the event of the death of such owner without leaving a wife or child surviving him, his property shall go to and become the property of his brothers and sisters, if any. That is deemed by the law to be a reasonable disposition of such property, or one that the average man of sound and disposing mind and memory would desire to be made of his property under such circumstances. That does not mean that a man of sound mind may not by will make any other distribution of his property that he may desire, whether such distribution may be, or may appear to be, reasonable or unreasonable, but it does mean that when one seeks to set up a will by which the property of the alleged testator is diverted from the channels of
“If you should find that the evidence does not preponderate to show that he had such capacity, then you would inquire no further, but would find against the will. If, however, you should find that the evidence does preponderate to'the effect that he had such capacity as I have defined to you, then j^ou Mould inquire whether or not the evidence preponderates to the effect that, notwithstanding such general sanity, the alleged testator was afflicted with insanity or monomania as I have described it to you. If it does so preponderate, and it should not further appear by a preponderance of the evidence that the alleged will was not the result or product of, or in any way influenced by or connected with, such monomania, then and in that event also you would find against the will. But, on the other hand, if you should find that the evidence preponderates in favor of the general sanity of the alleged testator, and further that it does not appear by a preponderance of the evidence that said testator was afflicted with partial insanity or monomania, or, if so, that the will was not the result or product thereof, or in any way influenced by or connected therewith, then and in that event you would find in favor of the will.”
We do not think the refusal to give this lengthy requested charge was error. To a certain extent it is argumentative; and in the second place, the questions dealt with were covered by pertinent instructions given in the general charge.
The rulings made in the 7th and 8th headnotes need no elaboration.
Judgment affirmed.