174 Ga. 128 | Ga. | 1932
Lead Opinion
This writ of error is based upon the result of an appeal from the court of ordinary. Mrs. Bonner filed for probate in the court of ordinary the will of her deceased husband, and Mrs. Stephens filed a caveat upon two grounds, one undue influence, and the other monomania. By consent of the parties no trial was had in the court of ordinary, the issue being by consent appealed to the superior court. It is recited in the bill of exceptions that the caveator admitted a prima facie case in favor of the propounder, and assumed the burden of proving that the paper sought to be propounded was not entitled to probate, because of undue influence exercised over the testator by the propounder, and furthermore on account of an aversion, prejudice, and bias which developed into monomania, whereby the will of Mrs. Julia Dunn Bonner was substituted for that of the testator himself. At the conclusion of
The only question presented by the record is whether there was sufficient evidence to require the court to submit the issues to a jury. Or in other words, would no jury have been authorized to find a different verdict from that directed by the court ? “Where upon a review of all the evidence, with reasonable deductions therefrom, it is manifest that there is but one finding which can be legally supported, it is not reversible error to direct a verdict.” This ruling is quoted in the brief of defendant in error from Cleveland-Manning Piano Co. v. Stewart, 15 Ga. App. 657 (84 S. E. 174), in which the writer had the honor to deliver the opinion in behalf of the Court of Appeals, and he still believes that the statement enunciated a sound principle. However, after a very painstaking examination of the brief of evidence in this case, considered in connection with the nature of the questions of law raised by the caveat, we have reached the conclusion that issues were presented in the trial under review which can not properly be determined by a court, and which should have been submitted to the jury. As suggested by counsel for defendant in error, a superabundance of immaterial testimony was drawn out in the examination of the caveatrix, whereby that which is material is bedimmed and beclouded. Furthermore the very skillful cross-examination by the very able and learned counsel for the propounder greatly extended the testimony of the caveatrix into immaterial recitals and into some opinionative and theoretical extravaganzas, and these are accentuated, no doubt, by the casual interruption of her narrative for the introduction, as' a witness for the propounder, of the minister of the gospel who performed the second marriage ceremony of the testator. We do not doubt that this break in the continuity of the testimony of caveatrix was for a good reason which addressed itself to the sound discretion of the court, but the diversion from the testimony for the caveatrix to testimony for the propounder certainly elongated the record of the testimony so as to obscure from the view of this writer, on his first examination of the record, a number of facts submitted in evidence, which altogether changed his first impression of the case.
Undue influence in procuring a will may exist in many forms,
What appears from the evidence in this case ? We have a testator. The testator has a wife. The testator has a child. This daughter of the testator is not the daughter of the widow. The will leaves to the widow of the testator an estate testified to be worth $75,000. It leaves to his daughter, as the only testimony of ordinary paternal affection, the sum of $25. It is in evidence absolutely uncontradicted that the testator married the mother of the caveatrix, and she was born in lawful wedlock; that her paternity, not only .conclusively presumed by law from the foregoing, was acknowledged by the testator, and that even after his first wife procured a divorce from him he bestowed upon his little girl in her early childhood the fondest endearments of a father to a daughter; that he supplied her mother from time to time with money to be used for her support; that he educated her, and as she grew older frequently gave her sums of money in various amounts; that he advised the marriage of his daughter to Meadows, her first hus
The Civil Code, § 3834, declares: “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.” We come now to consider what is necessary to prove undue influence. In Penniston v. Kerrigan, 159 Ga. 345 (125 S. E. 795), Mr. Justice Gilbert, delivering the unanimous opinion of the court, said: “When the trial on such an issue reaches the stage where evidence must be introduced to establish the allegations, we find that the rules of evi
From the unreasonable disposition of the testator’s estate, which under § 3841 of the Code “should have much weight in the decision of the question,” we think a jury would have been authorized, with the aid of other circumstances which appear in the brief of evidence, and reasonable inferences drawn therefrom, to find that there was undue influence exerted by the propounder as charged in the caveat, which subverted the volition of the testator and substituted therefor the will of the propounder. It is in evidence that the testator, after the separation from his wife, carried propounder and her husband to his home, and she there remained until the death of Dunn, her former husband, and until her marriage with testator, the only female in the house, rendering, so far as appears from the record, all of the usual domestic duties of a housekeeper and caretaker for the testator while her husband was night-watchman of other real estate owned by the testator. That testator and Mrs'. Dunn associated upon terms of the utmost confidence and familiarity, took long rides together, and were constant associates. No incontinence on the part of either is shown, but the very nature of the circumstances in their long years of association would authorize the inference that even a most estimable woman, in long years of eontiirued daily contact, would acquire great influence with a solitary man who is shown not to have been of a jovial or social disposition and whose companionships were very few. In Gaither v. Gaither, 20 Ga. 709 (2), it was held that “A son, married but still young, gave a large legacy to the children of his father, and whilst the son and his wife were residing with the father. The wife attacked the will, alleging, amongst other things, that the will was procured by the father, and by the exercise of undue influence on the son: Held, that the relation of parent and child, and the residence of the son under the parent’s roof, were facts to be taken into consideration by the jury, in determining the questions raised by the said allegations of the wife.”
The second ground of the caveat was based upon the allegation that the testator, by reason of monomania, was incapable of making a will. § 3840 of the Code declares: “An insane person can not generally make a will. A lunatic may, during a lucid interval. A monomaniac may make a will, if the will is in no way the result
Judgment reversed.
Dissenting Opinion
dissenting. While I take no issue with the majority of the court as to the propositions of law laid down in this case, I do not concur in the conclusion reached that the court erred in directing a verdict; for I do not think that the jury would have been authorized to find, under all the evidence submitted, any other verdict than that which was directed.