Espy v. PrestonEspy v. Preston
- Reporters:
- , ,
- Before:
- Bell
1. “Where the question under examination, and to be decided by the jury, shall be one of opinion, any witness may swear to his opinion or belief, giving his reasons therefor.”
2. The issue on trial being the mental capacity of the testatrix to make a will, and a daughter of the testatrix having testified, as a nonexpert witness for the caveators, that she was living in the home of the testatrix at the time the will was executed, and had done so for several months before that time, being with her, seeing her, talking with her, washing and ironing and cooking for her, and the attorney for the caveators having then propounded to the witness the question whether in her opinion, based on these facts, the testatrix “at any of those times . . had sufficient mental capacity to make up her mind, to have a decided plan or wish or program as to anything,” and the witness having answered, “I don‘t think she did, no, sir, in fact I know she didn‘t” — Held, that the court did not err in allowing such question and answer over the objection, “They haven‘t laid the ground for any such question by any of the witnesses, he is asking for an opinion by this witness as to this person‘s mind without laying any sufficient foundation to show that this witness knows her mental condition.”
(a) Under the preceding ruling, there was no merit in the first special ground of the propounders’ motion for a new trial. Grounds 2 and 3, being similar, were likewise without merit. Potts v. House, 6 Ga. 324 (4) (50 Am. D. 329); Frizzell v. Reed, 77 Ga. 724 (5); Strickland v. State, supra; Pennington v. Perry, 156 Ga. 103 (9) (118 S.E. 710); Merritt v. Wallace, 173 Ga. 435 (160 S.E. 610); Smith v. Tindol, 179 Ga. 801 (2) (177 S.E. 588).
(b) The question dealt with in Scott v. Gibson, 194 Ga. 503 (22 S.E.2d 51), cited for the plaintiffs in error, was the sufficiency of the evidence
3. While ordinarily the sufficiency of the reasons given by witnesses for their opinions as to a person‘s sanity or insanity can not be determined as a matter of law by the court, but is a question for the jury (Gray v. Obear, 59 Ga. 675 (3); Frizzell v. Reed, supra; Hubbard v. Rutherford, 148 Ga. 238, 96 S.E. 327; Pennington v. Perry, supra), yet, where it plainly and indisputably appears that the reasons are insufficient, the court may on review so hold as a matter of law, and a verdict founded upon such evidence should be set aside as being unauthorized. Brumbelow v. Hopkins, 197 Ga. 247 (2) (29 S.E.2d 42); Wood v. Lane, 102 Ga. 199 (29 S.E. 180); Credille v. Credille, 131 Ga. 40 (2) (61 S.E. 1042).
(a) The question to be decided by the jury being one of opinion, and the opinions of various witnesses having been given, the verdict in favor of the caveators does not appear to have been based on any question as to veracity.
4. The amount of intellect necessary to constitute testamentary capacity is that which is necessary to enable a party to have a decided and rational desire as to the disposition of his or her property to take effect at death.
5. There was no testimony of any expert witness showing or tending to show mental incapacity of the testatrix, and the testimony of every nonexpert witness to that effect was based on acts, conduct, and sayings of hers which did not within themselves show mental incapacity to make a will, and such testimony was therefore insufficient to support the verdict finding for the caveators. While several of the witnesses testified in effect that the testatrix had no greater mental capacity than a five or six-year-old child, the reasons given by each and all of the witnesses for these opinions, considered with the facts to which they testified, not only failed to support the conclusions stated, but tended to show the contrary. The verdict being without evidence to support it, the refusal of a new trial was error. See, in this connection, Peavey v. Crawford, 182 Ga. 782 (187 S.E. 13, 107 A.L.R. 828); Griffin v. Barrett, 183 Ga. 152 (187 S.E. 828); Hill v. Deal, 185 Ga. 42 (193 S.E. 858); Peavey v. Crawford, 192 Ga. 371 (15 S.E.2d 418); Scott v. Gibson, supra; Orr v. Blalock, 195 Ga. 863 (25 S.E.2d 668); Thomas v. Lockwood, 198 Ga. 437 (31 S.E.2d 791).
(a) The case differs on its facts from Morgan v. Bell, 189 Ga. 432 (5 S.E.2d 897), and Manley v. Combs, 197 Ga. 768 (30 S.E.2d 485), as to sufficiency of the evidence to support the verdict.
Judgment reversed. Jenkins, P. J., Atkinson and Wyatt, JJ., concur. Bell, C. J., and Duckworth, J., dissent from the rulings in paragraph 5, and from the judgment of reversal; concurring otherwise.
Mrs. S. Cordelia Lassiter died June 16, 1944. On September 23, 1943, she executed a will whereby she left all her real property, consisting of nine acres of land in Cobb County, being practically her entire estate, to three of her daughters, Mrs. Gladys R. Espy, Mrs. Leila L. Hamrick, and Mrs. Estelle L. Vickers, they to pay all of her just debts; and to her other children, seven in number, she left one dollar each. The above-named persons filed their petition to the court of ordinary for probate of the will in solemn form, praying that some one be appointed as administrator “in terms of the law,” the testatrix having designated in her will no one to be executor.
The other heirs at law of the testatrix were: Mrs. J. A. Preston, Mrs. Fred Kalb, Hoyt C. Lassiter, Mrs. L. N. Murdock, Mrs. W. I. Lazenby, Mrs. T. W. Hagood, and L. N. Lassiter. Two of these last-named heirs, to wit, L. N. Lassiter and Hoyt C. Lassiter, filed a caveat upon the following grounds: That Mrs. Lassiter, at the time of making said pretended will, was not of sound and disposing mind and memory; and that at the time she executed the same she was more than eighty-nine years of age, and for several years prior to that date had been laboring under a disability known to the law as senile dementia.
The ordinary adjudged that Mrs. Lassiter was not capable of making a will at the time of executing it, and denied probate. The case was appealed by the propounders to the superior court. Upon the hearing in that court, the jury found in favor of the caveators. The propounders’ motion for a new trial, based on the general grounds and three special grounds added by amendment, was overruled, and they excepted.
Special grounds of motion for new trial; rulings on evidence: The first special ground complained that — after Mrs. Preston, one of the daughters of the testatrix, had testified, among other things, that she and her husband lived with her mother from May 6, 1943, until December 7, 1943, only the three of them there, she (the witness) doing all the cooking, washing and ironing, and serving her mother in every way possible, and had further testified without objection; “Sometimes my mother was childish and sometimes she was like a grown person. Some times I didn‘t think she knew what she was saying, her mind was so bad. I would say she was like a child five years old. That was true a part of the
The second special ground of the motion complained because the judge allowed counsel for the caveators, over the objection of the movants’ counsel, to ask the witness, Hoyt C. Lassiter, one of the caveators, this question: “From your experience and conduct in detail, state to the jury whether or not in your opinion your mother had mind enough or mental capacity enough at any time for months prior to September 23, 1943 [when the will was executed], and for months after September 23, 1943, or at any time embodying these times, to know and understand the contents of this instrument (indicating the will)?” to which the witness answered: “No, sir, I don‘t think she did.” The ground of objection was: “We object to that question and the answer, and ask you to rule it out on the ground that he hasn‘t laid the foundation for this witness; he hasn‘t stated anything as I recall.”
Before the question was propounded, the witness had testified that he had often seen and visited his mother, visiting her every few days while his sister and her husband were living with his mother,
The third and last special ground complained that the court erred in overruling the propounders’ objection to the following question, and in permitting the witness, Mrs. T. W. Hagood, a daughter of the testatrix, to answer the same. The question was: “From what you have testified, I will ask you to state, was your
Evidence for the propounders: The attorney who drew the will, Fred Morris Sr. and two other attorneys, John T. Dorsey and John P. Cheney, were the attesting witnesses. All of these witnesses testified that the will was read to the testatrix in their presence; that she stated that she understood it, and it was the way she wanted her property to go; also that she was apparently of sound mind at that time. Mr. Morris further testified that, when the testatrix came to his office, she was accompanied by two of the three daughters who are the propounders; that when he was informed by the testatrix that she wanted him to write her will, he asked her if these daughters were to share in the disposition of her estate, and on being informed that they were, he asked them to retire from his office while he discussed the matter with the testatrix, and they did so retire; that she explained to him the disposition which she wished to make of her property, and he drew the will accordingly; that, when he had finished it, he read it over to her, and she stated that the will was not like she wanted it, that she had always heard that, if you do not mention all of the children in a will and give them something, “the will wasn‘t any good;” and that he then redrafted the will in part so as to expressly mention the seven children, and so that it would bequeath to them one dollar each; that he then read that part of the will the second time to the testatrix, when she said, “that is exactly like I want it.” He further testified that he read the will to the testatrix again, in the presence of all the attesting witnesses, before it was signed by the testatrix and the witnesses.
He also testified that he had known Mrs. Lassiter for about ten years; that he had previously transacted business for both Mr. and Mrs. Lassiter; that he had drawn a previous will for her; and that on this occasion she stated she wanted to destroy or do away with
Mr. Dorsey testified that he had known the testatrix for two or three years; that he and Mr. Morris shared the same offices; that he had seen the testatrix in the office of Mr. Morris five or six times; and that she always appeared to be rational and a person of sound mind.
The three daughters who were the propounders testified unqualifiedly that their mother, the testatrix, was of sound mind, as did several other witnesses for the propounders.
Letters written by the testatrix to her daughters, some shortly before and others after the will was executed, were introduced in evidence without objection. Two of these letters, one written before and one after the date of the will, being typical of the others, were as follows:
“Tuesday A. M.
“Dear Gladys and Leila
“Rec your letter today and also one from Estelle and as I dident get any letter from Either one of you last wk I begun to think I dident have a friend in the whol world but I never was as glad as I was when I got your letters this A M Well now I just cant write so much at one time The reason I wanted you all to send me the money so you could get the lots next to yours So send it on and youll get deeds They said it would be all right to make the deeds So now just send the money on and youl get the deeds before long Well now Flora has just come in and read your letters and took all of them and wouldent let me have them and she said she was going to write you all and tell you what A devil I was Well it is 3 P M and Im still on the land with the living Flora came and ordered me to let her read the letter I was writing to you but she picked up the letters that you wrote to me and wouldent let me have them So shes writing now They have been talking and planing among themself but shes the head leader I tell you what when she read your letters she cut a shine sure enough. She said she was going to call Leamon I told her
(This letter was contained in an envelope bearing the postmark, Marietta, Ga. June 23, 1943. It was addressed to Mrs. R. R. Espy, Jacksonville, Fla.)
“Tues a. m.
“How are you all getting on If you and Roy can comeup in your car after me I think it would be better to come to your house first and then come back by Mauds when I come back if God spears my life that long I dont know when Flora and John are going to get out. Il let you know when I find out Maud was up She said she would come up on the bus and cary me down to her house but I dont want to go that way Leila said she thought that you and Roy could come So Il let you know when they get out the weather is fine trust alls well I am able to be up. let me hear from you soon With love Leila hold to what you got till I see you With love your Mother.”
(The envelope bore the postmark Marietta, Ga. Sep. 28, 1943. It was addressed to Mrs. R. S. Espy, Jacksonville, Fla.)
Evidence for the caveators: Mrs. J. A. Preston testified in part: Direct examination — “My parents were Mr. and Mrs. H. C. Lassiter. . . At the time my father died in 1942, I was living at 1586 Stewart Avenue, in Atlanta. Then on the 6th day of May, 1943, I moved here with mother. . . I lived with her there then from the 6th of May until the 7th of December, 1943. . . In the period of time from May of 1943, her mind got weaker, considerably. Some times my mother was childish and some times she was like a grown person. Some times I didn‘t think she knew what she was saying, her mind was so bad. I would say she was like a child five years old. That was true a part of the time, and a part of the time I could say she might have been better, some times worse than others. I don‘t think at any time I saw her between May, 1943, and December 7th, 1943, that she would have known the contents of this will that is presented here. I don‘t
From the testimony of this and other witnesses, it appears that the “house and home” was on a tract of land, title to which was in the estate of the testatrix‘s husband, who had died intestate; this tract containing about 30 acres and lying adjacent to the 9-acre tract owned by the testatrix and described in her will.
Continuing, the witness testified: “Something was bearing on her mind about this land, and about her having full control, and that they didn‘t have anything to do with it, that it didn‘t belong
Cross-examination — “I said I thought mother some times had the mind of a five-year-old child, and I think some times not that much . . Mr. Welsch was asking me about the period of time there along between 1942 and 1943. As to whether or not during all that time she had the mind of a five-year-old child — well some times a child has got a better mind than it has at other times. I certainly said her mind was unbalanced. I say that because it wasn‘t mother at all; she wasn‘t no more like she was before she lost her mind than nothing, because she didn‘t act like she did when her mind was good. I say that from the way she acted. She had it in for all of us, for me and for all the rest of us. . . She read the Bible and she was a pretty-well-read old lady. She was a little too well versed in the Bible for her good. She knew too much about the Bible, that is, it preyed on her mind, I think.
Mrs. M. E. Megarrity testified in part: Direct examination — “I live on the Roswell Road, just across the four-lane highway. . . I have lived there since 1935 . . Since 1935 is the only time I have known Mrs. Cordelia Lassiter. I am acquainted with Mrs. Preston over there, in fact I have known her ever since I have known Mrs. Lassiter. I have visited Mrs. Preston in the home there before the death of Mrs. Cordelia Lassiter. For the last few months before September 23d 1943, I visited in the home there, and Mrs. Lassiter was there in the home at that time. . . With reference to any things I saw and heard there from Mrs.
Cross-examination — “I say that Mrs. Lassiter‘s mind was unsound for the reason that I don‘t believe that any person with a good, sound mind would say all the preachers were going to hell. I sure think they might save a few of them, I sure do. . . I have never heard a preacher say that all the folks were going to hell. And now, because she said all the preachers were going to hell, I think her mind was unsound. As to whether or not that is what I base it on — well, I think it was unsound. . . I said I thought she was childish. I say that because she talked childish. . . I don‘t remember now if I saw her the week before she made this will, nor that I saw her on the day that she made it; I might have, but I don‘t remember it. I don‘t know what the condition of her mind was when she was over there in Mr. Fred Morris‘s office. As to whether or not, if she was over there and this was read over to her and she told them she understood it, I would know whether she understood it or not — well, I would say that I don‘t think so. I surely don‘t know if she told Mr. Fred Morris what to put in this will. If she told him what to put in it, I still don‘t think she knew what it meant.”
E. G. Megarrity testified in part: Direct examination — “I had occasion frequently to see and be around Mrs. Lassiter during the last year or so of her lifetime. As to whether I was in Mrs. Lassiter‘s home prior to September 23, 1943 — well, no, I hadn‘t been in the house for some little time. I can‘t now recall the last time I was there prior to that time. I was up there probably early in 1943, but I don‘t remember the date. I was up there before the death of Mr. H. C. Lassiter. I went up there in 1942, in the early part of the fall . . and she says, `I told you you couldn‘t talk to him,’ and slammed the door again, and I turned and left, and I didn‘t go back any more until he died. I had known her
Cross-examination — “It wasn‘t because they wouldn‘t let me come in there to talk to a sick man at death‘s door that I now say she was of unsound mind; I said she had always invited me in before, different nights, and treated me as nice, until ten and eleven o‘clock at night, as nice as anybody in the world. He wasn‘t at the point of death; it was some several days, but I won‘t say how many.”
Carl Ballew testified in part as follows: Direct examination — “I was acquainted with Mr. H. C. and Mrs. Cordelia Lassiter in the last few years of their lifetime, I will say practically two years before he died. During that particular two years I lived just back this side of the H. C. Lassiter home place on the Roswell road. . . I lived there in that place for two years, and the property belonged to Mr. H. C. Lassiter. . . During the lifetime of Mr. H. C. Lassiter I paid the rent to him, while he was at home, and I was still living in that same house at the time Mr. Lassiter died. . . I have been over to the home place of Mrs. Cordelia Lassiter on one or more occasions and seen her and talked with her, after Mr. H. C. Lassiter died. I went over there to pay the rent, and just occasionally she wanted little jobs done such as cleaning the yard around there and helping her for a few minutes when I would have the spare time to be at home. . . I will say that I had this experience on one occasion when I came up in contact with Mrs. Lassiter: I went to pay the rent about a month before this contract was signed, as I understood. . . I had some money in my pocket to pay the rent, and she said, `No, you can‘t pay me none;’ she says, `What are you paying rent for? you can‘t pay me no rent, and the thing for you to do is to get away from here, get out of my house, I don‘t want anything to do with you.’ I had for months been paying rent on that house to her. And I just
Cross-examination — “I did not read the paper which Mr. Welsch exhibited to me; I have never read it. . . As to whether I am still telling this jury that that old lady didn‘t know enough to understand what was in that paper when I didn‘t know what was in it myself — I could read it and know what was in it. But I don‘t know what was in it myself. But a five-year-old wouldn‘t understand that, even though it just said the cow crossed the road. I don‘t think she would have understood that. . . I say now, if this paper had been read over to her she would not have understood it, and I don‘t believe she would. I did not see her the day she came up here and signed this paper, and I don‘t recall if I was here on that exact date. And I have told you the truth; I don‘t think it was any better then than it was when I was talking to her previous to that back there. I know it wasn‘t any good while she was over there. Her mind didn‘t seem to get any better than when I did have contact with her. I base that on what I have stated to the jury, and other simple little things.”
Hoyt C. Lassiter, a son of the testatrix, testified in part as follows: Direct examination — “During the last year or two before my mother‘s death I had quite a number of occasions for seeing my mother and being around her; . . That was in the last two or three years and the last several months before her death. And shortly after his death [witness‘s father], she came down and stayed with my oldest sister on Stewart Avenue . . out of Atlanta, and I lived near by and carried the mail on that route out of Atlanta. I lived within about a mile or a mile and a half from them, and I
Cross-examination — “I think I saw my mother the same day
Jas. J. Daniel testified in part as follows: Direct examination — “I have resided in Cobb County for 67 years. I am ordinary of this county. During her lifetime I was acquainted with Mrs. Cordelia Lassiter, not intimately so many years ago, and more intimately recently. . . She came in there and talked to me quite a few times after the death of H. C. Lassiter, I don‘t know how many times. . . As to the question of mental capacity of Mrs. Lassiter on September 23, 1943, and my opinion that, based on my knowledge of her and independent of this will, whether she had mind enough or mental capacity enough to know and understand the contents of this will which you exhibit to me — I would say that she seemed to get somewhat worse; she couldn‘t reason. I tried to explain to her that she had a share in the H. C. Lassiter estate. She thought she owned it all. She didn‘t want anybody, the law or anybody else, to interfere with it, and she told me she was the law with reference to that estate. That was later on after she became excited about it, and it was impossible to reason with Mrs. Lassiter.”
Mrs. T. W. Hagood, a daughter of the testatrix, testified in part as follows: Direct examination — “The last time I saw my mother while she was well was just a short time before she went to Florida the last time. . . I think that was some time during November of 1943. And my sister, Mrs. Murdock, and myself had planned to visit our afflicted sister up near Roswell . . and we stopped at our mother‘s old home to carry mother with us . . and when I went in mother was sitting in a chair mending some garment. She was just as quiet and all as she could be at that moment. My sister, Mrs. Preston, was in the kitchen doing some work, and when mother saw me she just went delirious wild and she began to go on something terrible and we tried to quiet her, and we wanted to take her to Roswell to see our sister, her daughter, and no, she couldn‘t go, she couldn‘t do it, and she carried on so that we couldn‘t do it, and we just left and went on without her. That was the last time I ever saw mother while she was alive and well.”
Cross-examination — “I saw my mother there occasionally, but I