151 Ga. 540 | Ga. | 1921
1. The court instructed the jury as follows: “To establish incapacity of the grantor, Miss Saphronia Ricketson, she must be shown to have been, at the time of making the deed, non compos mentis in the legal acceptation of that term, which means not a partial but an entire loss of understanding. If Miss Saphronia Ricketson, the grantor in the deed now under investigation, had enough mind and reason to understand the nature of the consequences of her act in making the deed, she is to be considered sane. If she lacked that capacity, she is to be considered insane. Dnless the grantor, Miss Saphronia Ricketson was afflicted with an entire loss of understanding, she must be considered as having capacity to make the deed.” Error was assigned on this instruction, on the ground that it “required the plaintiff to show that the grantor was really weaker mentally' than would be necessary to nullify the deed.” In view of the evidence in the case and the charge in its entirety, this instruction is not cause for a new trial, especially where the court did instruct the jury that if “ the grantor in the deed now under investigation had enough mind and reason to understand the nature and consequences of her act in making the deed, she is to be considered sane. If she lacked that capacity, she is to be considered insane.” Bryan v. Bryan, 139 Ga. 51 (2) (76 S. E. 563), and authorities cited; Smith v. McClure, ante, 484 (107 S. E. 330). The only evidence of mental incapacity was the opinion of the plaintiff, an interested, non-expert witness, who was not present when the deed was executed, and who admitted
2. The court instructed the jury as follows: “A person standing in a confidential relation to another is not prevented from exercising any influence whatever to obtain a benefit to himself,” and also: “ And in this case I charge you that even though you might believe the evidence that the defendant talked to her sister, Miss Saphronia Eieketson, about the deed and advised her to make it and to convey her interest in the plantation to her, this would not authorize you to set the deed aside, unless you further believe from the evidence that the defendant, Miss Ann Eieketson, was so persistent in her efforts to secure the deed from her sister as to destroy the free agency of Miss Saphronia, and caused her to make the deed against her will, but which she was powerless to refuse to make.” In view of the context and of the evidence the above-quoted instructions show no cause for the grant of a new trial. Aside from the fact that the grantor and the grantee were sisters who resided together for many years, there is no evidence whatever in the record tending to show undue influence or to justify an inference of such. DeNeiff v. Howell, 138 Ga. 248 (6), 251 (75 S. E. 202).
3. The judge instructed the jury as follows: “I charge you further that if you believe from the evidence that Miss Saphronia Eieketson at the time she made the deed had capacity to make it, and that she understóod what she was doing, and no fraud or deception was practiced upon her, and that no undue influence so as to destroy her free agency was exercised over her and which induced her to make the deed against her will, she had the right to request either Miss Ann Eieketson, the defendant in this case, or Dr. F. B. Eieketson, to have the deed prepared; and if defendant or Dr. F. B. Eieketson had deed prepared and secured the witnesses to it or brought the witnesses and deed to her and assisted in the actual execution of it, this I charge you would not be any ground to set the deed aside.” Error is assigned on this charge, on the ground that it was an expression of the opinion of the judge that the grantor had in fact requested that the deed be prepared and the witnesses brought to her for the purpose of executing the deed. ■
4. The court instructed the jury as follows: “If in your investigation you should find, under the evidence, facts and circumstances, and the rules of law given you in charge thereto, you should find that the plaintiff has failed to carry this burden, or make good his contentions on one of his grounds, you need not go any further in your investigation, and your finding would be for the defendant in this case.” Considering the charge in its entirety and the evidence in the case, this instruction will not require a new trial.
5. Error is assigned on the failure of the court to instruct the jury in regard to the allegation in the petition that the grantor was made to believe that she was executing a deed to the grantee therein to the property for and during her life, with remainder to her sisters and brothers. There being no evidence upon which to base this .issue, the court did not err in failing to instruct the jury on that subject.
6. The complaint that the case was closely contested and that the judge “did not charge and state with equal explicitness and fairness the contentions and theories of the plaintiff’s side of the case as he did those of the defendant’s side of the case, and that the theories of the defendant’s side of the case were more favorably stated,” is not borne out by the record. While the instructions to the jury are subject to some criticism, as above indicated, we think the issues, as shown by the evidence and pleadings, were stated with substantial accuracy; and if the plaintiff desired more elaborate instructions on any subject, he should have duly requested the court in writing.
7. The verdict is supported by evidence.
Judgment on main bill of exceptions affirmed. Gross-bill of exceptions dismissed.
