185 Ga. 561 | Ga. | 1938
Lead Opinion
A caveat was filed by a husband to the probate in solemn form of the will of his wife, in which she devised him one dollar. Lack of mental capacity to make a will was alleged. An amendment to the caveat was offered, in which undue influence and coercion were alleged. On objection this amendment was disallowed. The trial resulted in a verdict in favor of the propounder. A motion for new trial was overruled, and the caveator excepted. Error was assigned also on the dis-allowance of the offered amendment to the caveat.
Complaint is made that the court, after charging the jury on the subject of testamentary capacity, instructed them: "The attestation of the will before you for your consideration is in due form and recites the statutory requirements. I charge you that this attestation clause raises a presumption that the will was executed as required by law, and as to whether that presumption has been overcome is entirely for you to determine from all the evidence, facts and circumstances of this case; both by the evidence produced by the propounder and the evidence produced by the caveator.” It is alleged in this ground: "There was no issue involved in the ease except that of testamentary capacity. This part of the charge, coming, as it did, immediately after the instruction as to testamentary capacity, could mean only one thing to the jury, and that is when the attestation clause was shown to be correctly worded, that a presumption arose that the will was in all respects executed according to law; whereas one essential element to be shown by the propounder is mental capacity of the testatrix at the time of execution, and as to this fact there is no presumption in favor of the propounder, but the burden rests on her throughout the case to show mental capacity. This charge was especially error under the peculiar facts of this case, for it was shown by the witnesses attesting the will that they had no knowledge whatever of the mental condition of Mrs. Mary Pope Scott, at the time of attestation. . . The effect of this instruction was to convey to the jury that the presumption arising in favor óf the propounder related to proper attestation and to mental capacity as well, and said instruction was and is error.” It is true, as alleged in this ground, that neither of the witnesses to the will testified as to the mental condition of the testatrix, and one of them testified that "he had heard that Mrs. Scott had undergone treatment for mental trouble.” However, immediately following the testimony of the living subscribing witnesses (one being dead) the propounder introduced the testimony of several witnesses, whose testimony was to the effect that while the testatrix was obsessed with the idea that she had committed an unpardonable sin and that her soul was lost, yet in their opinion she was capable of making a will. One of these wit
Error is assigned on the following instruction to the jury: “I charge you that in the determination of this case that the condition of the mind at the time of the execution of the will must determine whether or not the will is valid. Testimony has been admitted of the condition of the mind both before and after that time; but I charge you that you should consider such evidence only for the purpose of determining what the condition of her mind was at the time of the execution of the will. That the mind of the testatrix was affected at a timé before the will was executed would not authorize you to find against the will unless you should believe that her mental condition at the time the will was made was so bad as to amount to a total lack of reason. Caveator alleges that the testatrix, Mrs. Mary Pope Scott, was mentally incapable of executing a will. I charge you that in order to make a will valid, a person is required only to have such mental capacity as will enable her to know her relations to those persons related to her by blood and affection, what property she has, and to have a knowledge that a will is a disposition of property to take effect at death and to form and express by words or writing a definite intention to dispose of her property in a definite way. In order to avoid a
It appears that 'immediately preceding the excerpt last set out the court charged the jury as follows: “A person has testamentary capacity who understands the nature of a testament or will, viz., that it is a disposition of property to take effect after death, and who is capable of remembering generally the property subject to disposition and the persons related to him by the ties of blood and affection, and also of conceiving and expressing by words, written or spoken, or by signs, or both, an intelligent scheme of disposi
During the trial the caveator offered in evidence a certified copy of the proceedings in a divorce action brought by the testatrix against her husband in 1921, alleging desertion, from which it appeared that a jury refused to grant her a divorce. The court refused to admit this record in evidence, “ except for purpose of impeachment.” Error is assigned on this ruling. In this ground of the motion it is alleged that this documentary evidence was a court record antedating the will, when no motive existed for making incorrect or false statements, and was of the highest value in corroborating the oral testimony of the caveator as to his wife’s condition. The answer of the defendant in this divorce proceeding denied having deserted his wife, and stated that due to a nervous illness from which she was suffering she had resumed treatment at a hospital at Milledgeville, Georgia, where she was carried by her husband. The court did not err in the ruling complained of, as it does not appear how the admission of this evidence without any restriction could have benefited the caveator in any way.
5. The erroneous disallowance of the offered amendment to the caveat rendered nugatory the further proceedings in the case.
Judgment reversed.
Concurrence Opinion
concurring specially. We agree to the conclusion arrived at, but concur specially in the ruling stated in division 3 of the opinion. There being no issue of imbecility made by the evidence, the evidence for the caveator tending only to show delusional insanity, the charge by the court as set forth in that division was erroneous. Whether the -case should be reversed on this ground it is not necessary to decide, since the judgment must be reversed on another ground.