161 Ga. 651 | Ga. | 1926
On August 27, 1914, Edward Littleton executed a paper purporting to be his last will and testament, and died on June 6, 1924. On June 10, 1924, Dr. J. G. Dean filed a petition with the ordinary to probate the original will, and two codicils, in solemn form. On July 12, 1924, William Littleton Jr. filed a caveat in which he alleged mental incapacity on the part of Edward Littleton to execute the will, and undue influence on the part of Dr. J. G. Dean, the propounder, over the testator, which deprived him of freedom of action in the disposition of his property, and went to the extent of substituting the propounder’s will for that of the testator, etc. The ease was first tried before the ordinary, who declined to probate tlie will. The propounder entered an appeal to the superior court, where the case was tried, resulting in a verdict and judgment denying probate of the will. The propound-er made a motion for new trial, on the usual general grounds and ten special grounds. The motion was overruled, and the propounder excepted.
The court charged the jury as follows: “He may make by his will any disposition of his property not inconsistent with the laws, or contrary to the policy of the State. He may bequeath his entire estate to strangers, to.,the exclusion of wife and children; but in such cases the will should be closely scrutinized, and upon the slightest evidence of aberration of intellect, or collusion, or
The 8th ground of the motion complains that the court erred in refusing to give in charge to the jury the following on timely written request: “The very nature of the will requires that it should b.e freely and voluntarily executed; hence anything which destroys this freedom of volition invalidates the will; such as fraudulent practices upon testator’s fears, affections or sympathies, duress, or undue influences, whereby the will of another is substituted for the wishes of the testator; but I charge you that the undue influence above referred to which could operate to invalidate a will must be such influence as amounts to either deception or to force and coercion destroying free agency.” The insistence is that “such request is the law, that such charge is not covered in the general charge, it was applicable to the case being tried, and therefore error for the court to refuse to so charge.” The court in his general charge instructed the jury on this subject as follows: “Now,, gentlemen, if you should find from the evidence in this case that at the time these papers were so executed, that Mr. Littleton had sufficient testamentary capacity to make a will, then you would address yourselves to the other grounds of the caveat, as to whether or not the papers so executed were the result or outcome of an undue influence exercised over him by the propounder, Dr. Dean; and with reference to that I charge you that a mere general or reasonable influence over the testator is not sufficient to invalidate a will. To have that effect the influence must be undue. The rule
While this court has held that “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), yet we are of the opinion that the charge given by the court is in substantial accord with the rule laid down in the above case, which has been followed in DeNieff v. Howell, 138 Ga. 248, 251 (75 S. E. 202), and Burroughs v. Reed, 150 Ga. 724, 726 (105 S. E. 290).
Other headnotes require no elaboration.
Judgment reversed.