161 Ga. 615 | Ga. | 1926
Jonathan P. Dyar Sr., seventy-eight years old died on July 18, 1923, leaving a widow, three sons, and four daughters. A paper purporting to be the last will and testament of the deceased, dated November 24, 1900, and another paper dated April 1, 1912, purporting to be a codicil to the will, were offered for probate in the court of ordinary. No provision was made for
The eighth ground of the motion (as amended) for a new trial is as follows: “While the witness J. A. Price was under cross-examination, he was asked by counsel for propounder the following question: ‘He [testator] had the mental capacity to know who his children were?’ Counsel for caveators objected on the ground that the question called for a conclusion, which objection .the court sustained. Movants say that the court erred in sustaining the objection to the question asked, and refusing to allow the witness to answer same, for the reason that the witness had shown by his testimony that he had known testator since the year 1875. He talked with him frequently, had business dealings with him, and that in the year 1900 he had the mental capacity to know what property he had, and that he had never seen him at any time ^vhen he did not think he had the mental capacity to transact the business of life, and had fully qualified to give his opinion as a non-expert on the testator’s mental capacity, or any phase thereof.” It is insisted in the brief of the attorney for defendants in error that this ground of the motion for a new trial is
The fourth ground of the motion is as follows: “While the witness T. E. Turner, one of the subscribing witnesses to the will, was being examined in chief, counsel for propounder asked the witness the following question: ‘Now, at the time he made this will, did he or not appear to have sense enough to know who his
The fifth ground of the motion was: “While the witness W. P. Martin, for propounder, was being examined on a cross-examination by caveators’ counsel, he was asked this question: ‘Mr. Dyar usually came there [to the express office] to get shipments of liquor, didn’t he?’ This question was objected to by counsel for propounder, on the ground that' it was immaterial and irrelevant, and because there was no pleading to authorize any such evidence, which objection the court overruled, and permitted the witness to testify that he delivered whisky to testator at the express office at Adairsville, Georgia. . Movants say that said ruling admitting this testimony as to the testator receiving and consuming intoxicating liquors was error, and that such testimony was irrelevant, immaterial, and incompetent for all the reasons stated, and further because the witness Martin testified that he only became express agent in the year 1905, and the whisky deliv
The sixth ground of the motion complains of the admission of the following question and answer: “What did he [testator] say at that time about his drinking?” Answer: “He told me about what he drank; it was around 16 ounces a day.” The evidence was admitted over-objection that “there were no pleadings’ to authorize siich evidence and no allegations with reference to: either drunkenness at the time, or impairment of the mind’of' deceased on account of the use of liquor.” This testimony, considered in connection with other evidence, tended to show that the testator at the time of making the will was afflicted with monoma1' nia as alleged in the second ground of the caveat, and that such" condition of mind was produced by excessive use of intoxicating liquor. It was not necessary to plead the evidence relied on to show the fact of monomania, in order to render such evidence admissible.
The seventh ground- of the -motion complains of the admission of the following question and answer of a witness: “When did he [testator] begin drinking?” Answer: “Can’t give you the date; it was something like 18 months or two years before I knew of him drinking any after I went to work for him. The habit grew on him while I remained there.” The evidence was admitted over the objection “that it is immaterial, irrelevant, and incompetent, and no pleadings to authorize it.” In connection with this testimony the witness testified that he went to work with the testator “along about 1886” and remained until “somewhere in the year 1889.” It was not erroneous to admit the testimony over the objections urged.
The ninth ground of the motion complains of the admission of the following question and answer of a witness: “Did he [testator] become an excessive user of intoxicants?” Answer: “Yes, sir.” The evidence was admitted over the objection that it
The first (special) ground of the motion complains of_ the following charge: “ Old age, and the weakness of intellect resulting therefrom, does not of itself constitute incapacity. - If that weakness amounts to imbecility, the testamentary capacity is gone. In cases of doubt as to the extent of this weakness, the reasonable or unreasonable disposition of the estate should have much weight in the decision of the question.” The grounds of exception to the charge are: (a) “Because the same was wholly inapplicable to the case on trial, or to any issue made by the pleading therein, or arising upon the evidence before the jury, there being no allegation in the grounds of caveat filed by caveators that the deceased, Jonathan P. Dyar, was, either at the time he executed the. writing propounded as his original will or at the time he executed the writing propounded as his codicil to said will, afflicted with old age or with weakness of intellect resulting from old age and amounting to imbecility, or to any lesser degree of weakness of intellect from old age; nor was there any evidence introduced before the jury on said trial showing or tending to show that deceased, at the time he executed either of said written instruments, was, from old age or as a result thereof, afflicted with either mental imbecility or with any weakness of intellect in any degree whatever; and for said reasons said charge was confusing and misleading to the jury -and calculated to cause or lead them to consider the old age of deceased as a producing cause of mental imbecility or weakness of intellect in him at the time he executed each or either of said written instruments, and to support such conclusion from a consideration by the jury of any unreasonable disposition made or sought to be made by deceased of his estate by said written instruments; all of which was material and hurtful error against the propounders.” (b) “Because said charge erroneously assumed by implication, and was calculated to mislead the jury to assume, that the pleadings and evidence in said case authorized the jury to consider, as one of the issues in said ease, the question whether, at the time deceased executed the written
This excerpt from the charge set forth in ground one of the amendment to the motion for new trial is included in the language employed in the Civil Code (1910), § 3841. That section is a rule of evidence, and may be given in charge on an. issue of devisavit vel non, without specially pleading such rule, where there is evidence to authorize such charge. The above-quoted excerpt is only a part of the pertinent portion of the charge: “I read to you section 3841 of the Civil Code. Eccentricity of habit or thought does not deprive a person of power of making a testament; old age, and the weakness of intellect resulting therefrom, does not, of itself, constitute incapacity. If that weakness amounts to imbecility, the testamentary capacity is gone. In cases of doubt as to the extent of this weakness, the reasonable or unreasonable disposition of his estate should have much weight in the decision of the question. I charge you that in case of doubt as to the extent of the alleged monomania or partial insanity if it existed, and as to its effect in bringing about the disposition of the testator’s property, shown by the will, the reasonableness or unreasonableness of the disposition of his estate should be considered by you in the decision of such question.” The evidence tended to show that the testator was 55 years of age when the will was executed in 1900, and 67 years of age in 1912 when the codicil was executed. There was also evidence tending to show that the testator’s mind was diseased at the times when the will and codicil were executed, to the extent of showing monomania as alleged in the second ground of caveat, and that the disposition of the property as related to the daughters of the testator was unreasonable. The charge in its entirety shows that the judge was attempting to explain that the jury might consider the reasonableness or unreasonableness of the disposition of the property in determining the main issue as to whether the testator’s mind was diseased to the extent of destroying mental capacity to make a will. In these circumstances
The second (special) ground of the motion was as follows: “You look to all the evidence introduced- before you and determine whether or not the will offered herein was executed by Jonathan -P. Dyar on account' of regular or intermittent drinking of-intoxicating liquors, or any other cause, to an extent that his mind became unsettled so far as it related to his natural love and affection, or duty to his daughters, and whether or not the will expressed the excited vagaries of a drunkard, instead of the rational desire of a man disposing of his property to his relatives. If you find that the will does not express such rational desire, then you would find against the will.” The grounds of exception to the charge are: (a) Said instruction was erroneous, because there was no allegation in the caveat of caveators, alleging either the .regular or intermittent drinking of intoxicating liquors by deceased at the time of or at any time prior to the execution by him of either of the written instruments propounded in said case as his will or codicil thereto; nor any allegation in said caveat that deceased was, at the time he executed either of said instruments, afflicted with alcoholic insanity, or that the monomania of deceased .therein alleged to have existed at the time he executed either of said instruments was induced or brought on or caused by either the regular or intermittent drinking of intoxicating liquors by deceased, or that he was drunk or intoxicated or was a drunkard at the time he executed either of said instruments, or that deceased was in any way mentally incapacitated, by reason of drinking intoxicating liquors either regularly or intermittently, to execute and -make either of said instruments as his last will and testament; nor- was there any allegation in said caveat referring in any way -to the drinking of intoxicating liquors by deceased as a ground for -eaveating said will, or as producing or contributing cause of the alleged monomania of deceased, (b) Because said instruction erroneously directed the jury to determine from the evidence whether ■the will in question expressed the excited vagaries of a drunkard .instead of the rational desire of a man disposing of his property -to his relatives, and that if they should find that the will does not
The third (special) ground of the motion for new trial was as follows: “On the propounding of the will, where the question is insanity or monomania, the reasonableness- or unreasonableness of the disposition of property by a will is always a question to be considered by the jury; and while, in and of itself, an unnatural or unreasonable disposition of his property by testator would not be sufficient to set aside a will, yet where the.evidence raises a doubt in the minds of the jury as to the extent of the weakness of intellect of the testator, the reasonable or unreasonable disposition of the estate should have weight in the decision of the question.” The grounds of exception to the charge are: “Because it was an expression of the opinion of the court, as to the effect bf the reasonable or unreasonable disposition of the property, that it should have weight, whereas the court should have charged the jury that it might consider the reasonable or unreasonable character of the will in determining the issue in the case, or that it was a legitimate subject for their consideration, thus leaving to the jury the question of its weight, if any it had. Movants further object to said charge of the court, because the court should have further charged the jury in this connection, that, although they might find that the will was unreasonable, yet they could not on that account set the will aside, if they found that otherwise the testator had sufficient intellect to enable him to have a rational and decided desire to dispose of his property. Movant further assigns error
There was no demurrer to the caveat, as in the case of Dibble v. Currier, 142 Ga. 855 (83 S. E. 949, Ann. Cas. 1916C, 1). In that case it was said “Our code recognizes such a thing as monomania as affecting testamentary capacity. Civil Code (1910), § 3840. But it means a mental disease, not merely the unreasonable conduct of a sane person. It is a species of insanity. Mania is a form of insanity accompanied by more or less excitement, which sometimes amounts to fury. The person so affected is subject to hallucinations and delusions, and is impressed with the reality of events which have never occurred and things which do not exist, and his actions are more or less in conformity with his belief in these particulars. Hall v. Unger, 11 Fed. Cas. 261, 263 (No. 5949). This mania may extend to all objects; or it may be confined to one or a few objects, in which latter case it is called monomania. It is not every delusion which will deprive one of testamentary capacity. It must be an insane delusion. A definition of such a delusion which has been approved by this court is that it exists wherever a person conceives something extravagant to exist which has no existence whatever, and he is incapable of
Judgment affirmed.