188 Ga. 148 | Ga. | 1939
This is the second appearance of this case. In Scott v. Wimberly, 185 Ga. 561 (195 S. E. 865), the judgment of the trial court disallowing an amendment offered by the caveator and alleging undue influence, was reversed. After the return of the case to the lower court the caveat was further amended by adding the following: “That his deceased wife left no children, and that except for the alleged will he is her sole heir. That on or about January-, 1917, she suffered a complete nervous breakdown, complaining of head pains, of hearing noises, of people peering at her through windows and doors, and her mental condition grew so bad that caveator, with other members of her family carried her to Asheville, Baltimore, and other.places for treatment. That for a brief period she appeared to respond to treatment, but finally about the year 1920, while her bodily health improved, her mental condition grew worse to such an extent that it became fixed, and from this time to the end of her life she was incapable of understanding business, and lacked sufficient mentality to understand the nature of a will. That, from about the year 1920 to her last illness, she was able to take walks, knew familiar faces, and could do other acts requiring no exercise of her mentality, although she did conceive the idea that caveator, her husband, had deserted her in 1917, which was in fact untrue, since caveator was at all times a faithful and affectionate husband to his wife; and such belief was a result of the mental disease with which his wife was possessed. That, laboring under this belief, she was induced to bring a petition for divorce filed to the July term, 1921, of the superior court of Bibb County, in which desertion was alleged as a ground for divorce, which ground was in fact untrue, and was
In the first special ground of the motion for new trial complaint is made that the court “omitted to instruct the jury as to the elements of undue influence as applied to the instant case, although a special ground of caveat was directed to that one question.” On the subject of undue influence the court charged the jury that “the very nature of a will requires that it should be freely and voluntarily executed; hence anything which destroys this freedom of volition invalidates a will; such as fraudulent practices upon testator’s fears, affections, or sympathies, duress or any undue influence, whereby the will of another is substituted for the wishes of the testator.” This instruction in language of the Code, § 113-208, was applicable to the case; and in the absence of a proper written request it is not cause for a new trial that the court failed to elaborate thereon. Gale City Dairy & Ice Cream Co. v. McRae, 164 Ga. 810 (2) (139 S. E. 542). In the same ground error is also assigned on the charge of the court that “All wills are to be construed as being valid or invalid at the time they are executed; that is, at the time the mil was signed.” The complaint is that this charge “omitted the issue made by caveator that the undue influence exerted may have occurred before the will was even prepared, there being no. direct and positive evidence that
What has been said above as to the sufficiency of the court’s instruction on the subject of undue influence is applicable to the complaint in the second special ground of the motion, that the court erred in “failing to plainly and fully charge the law as to the execution of a will under a mistake of fact.” The court instructed the jury substantially in the language of the Code, § 113-210, that “A will executed under a mistake of fact as to the existence or conckict of the heirs at law of a testator, is inoperative, so far as such heir at law is concerned, but the testator shall be deemed to have died intestate as to him.” (Italics ours.) In this ground it is also alleged that the court erred “in charging-on the question of ‘ delusions,’ which failed to, distinguish the issue raised in the caveat setting out mistake of fact as to desertion and
The third special ground assigns error on the following instruction: “I charge you that ordinarily the burden of proof is upon Mrs. Wimberly to show by a preponderance of the evidence that the testator was of sound mind at the time of the making of the will, that the will was executed freely and voluntarily, and that it was executed in the presence of three witnesses, as required by the statute. In this case Mr. Scott, the caveator, has by an amendment in his pleadings admitted a prima facie case in favor of the propounder, by admitting that at the time the will was made the testatrix was apparently of sound mind, that apparently she executed the will freely and voluntarily, and that apparently the will was executed as required by the statute; and I charge you that to overcome these admissions made by him he must prove by a preponderance of the evidence that at the time the will was made Mrs. Scott was of unsound mind, or that the will was made under the undue influence of some other person, or that the will was not executed as required by statute.” The complaint is that this charge restricted the caveator, in overcoming the prima facie case, to proof that Mrs. Scott was of unsound mind, that the will was
The fourth ground complains because the court, having charged th'e jury section 38-106 of the Code, defining preponderance of evidence, did not also instruct them as to the law contained in § SS-IO?, as follows: “In determining where the preponderance of evidence lies, the jury may consider all the facts and circumstances of the case, the witnesses’ manner of testifying, their intelligence, their means and opportunity for knowing the facts to
The verdict was authorized by the evidence, and the court did not err in overruling the motion for new trial.
Judgment affirmed.