117 Ga. 19 | Ga. | 1903
A paper purporting to be the will of Mrs. Annie E. Holmes was offered for probate by W. D. Woodson, who was therein named as executor.' J. E. Holmes, husband of the testatrix, filed a caveat on the grounds, (1) that the instrument was not the will of Mrs. Holmes, “ because she did not execute, make, or sign said will, and died without executing any will;” (2) that it was not the will of Mrs. Holmes, because she did not execute it freely and voluntarily, and if it was ever executed by her she was moved thereto by undue influence exerted over her by her sister, Mrs. M. E. Woodson; (3) that it was not her will, because she was led to believe that she was indebted to Charley Woodson (one of the legatees in the will), when such was not the case, and no necessity existed for her to provide for the payment of such a debt; (4) that improper influence was exerted over her by Mrs. M. E. Woodson, “and by the representation that he (?) had contributed largely •towards the payment of insurance and taxes on her house and lot in Barnesville, which representations were made to induce her to make provision therefor or the payment thereof, which representation misled and influenced her against her will, for no such facts
The decedent's home was in Pike county. At the time the paper óffered for probate as her will was signed, she was visiting in Atlanta at the home of her sister, Mrs. M. F. Woodson, the mother of the propounder, where she had been, with the exception of about two weeks, for a little more than three months. She was in feeble health, but was able to walk up and down stairs to her meals, and was perfectly clear in her mind. She had recently made .a trip of two weeks’ duration, unaccompanied, from Atlanta to Madison and return, on a visit to another sister. She was not confined to her room on account of her health until about ten days after the execution of the will offered for probate. She had previously pre
5. So far as concerns the contentions of the caveator that the decedent did not sign the instrument offered for probate as her will, that she was unduly influenced to execute it by any beneficiary thereunder, that she was led to sign the paper by reason of false and fraudulent representations to her, that she lacked mental capacity to make a will, or that the paper was fraudulently altered by Woodson, the finding of the jury is in the teeth of the uncontradicted evidence. Only upon one of these contentions was any evidence introduced. With reference to the signature to the will offered for probate, the caveator, who was the husband of the decedent, testified: “To the best of' my knowledge and belief, I do not believe that is her signature; ” but, upon cross-examination, he said: .“ I will not say either way, whether or not it is her signature. To the best of my knowledge and belief, I do not believe it is her signature. I qualify my remark that way; nobody could say positively that it is not her signature and tell the truth.” Opposed to this, the subscribing witnesses all swore that they saw Mrs. Holmes sign the will; so that as to this point it may be very properly said that the evidence is not in any manner conflicting. Only upon one theory can the verdict stand, viz., that the evidence showed that Woodson procured the execution of the will, that he was a beneficiary thereunder, and it was therefore iucumbent upon him to show by more direct and positive testimony than would ordinarily be requisite that Mrs. Holmes knew its contents, that he failed to do this, and that the jury were authorized to find against the will on the ground that the testatrix did not know its
Furthermore, the evidence, in our opinion, fails to show that Woodson,in any proper sense, “ procured ” the making of this will. There is not a syllable in the record to indicate that he made any suggestion to the testatrix as to how she should dispose of her property, or that he expressed or entertained the slightest desire that she should make a will at all. On the contrary, she seems to have taken' the initiative in every move that was made' towards-the preparation of a will, while everything that he did was done as a matter of accommodation to her and in furtherance of her expressed wishes. We do not lose sight of the fact that, at-the request of Mrs. Holmes, Woodson had “our attorney” to draw the will. For aught that appears from the record, however, the draughtsman was as much the attorney of Mrs. Holmes as of' Woodson; in fact, we incline to the opinion that it is fairly infer-able from the evidence that for the purposes of this will he was solely the attorney of Mrs. Holmes, and that Woodson was-merely the go-between and mouthpiece of Mrs. Holmes in having the will drawn- in accordance with her wishes. The record is-silent as to who paid the attorney for his services; but there is certainly nothing to indicate that he was acting in the capacity of' attorney for Woodson in drawing Mrs. Holmes’ will. It seems to have been only after a considerable effort and some importunities on the part of Mrs. Holmes that Woodson was induced to ask-witnesses to come to the house to attest the execution of the instrument, and there is absolutely nothing in the record to show any eagerness or anxiety on his part that the will should be executed.
We have gone very carefully into the cases cited in the brief of' counsel for the defendant in error, as well as many others bearing upon this subject, and we find that those relied upon by counsel are very different as to their facts from the case now under consideration. In Beall v. Mann, 5 Ga. 456, the rule is laid down
In Schouler on Wills, § 245, we find the following: “ It is well settled that any will, prepared or procured by one-. . interested in its provisions, imposes an additional burden, if assailed, upon those who seek to establish it; for the court, or the trier of the case, regards that circumstance with suspicion and jealousy, and desires to be satisfied that the paper which is propounded expresses the true will of the deceased, and not that of the interested party.” (Italics ours.) In section 247 it is stated, that “ Where error, fraud, or undue influence is charged, stricter proof than usual may be needful to show not only capacity, but that the testator knew the contents of the instrument he executed. In ordinary cases, to be sure, the formal execution of the will by a person who can read and write imports knowledge of its contents. But where it is shown that the testator, being blind, illiterate, or very feeble, could not have gained this knowledge unaided, more positive proof that he actually knew and assented is required to repel any suspicion which circumstances may have cast upon the good faith of the transaction ; as, for instance, where the draftsman or party man
After a very thorough review of this case we are constrained to hold that there was an entire lack of evidence to support a finding that the testatrix did not know the contents of the will offered for probate, or an instruction to the effect that it was necessary for the propounder to show by stronger than the ordinary proof that she did have such knowledge. As before stated, the other grounds of the caveat were wholly unsupported by evidence and were practically abandoned by counsel in this court. In view of what has here been held, it follows that the judgment of the court below overruling the motion for a new trial must be reversed. The foregoing disposes of every point made by the motion for a new trial which we deem it necessary to here discuss; for,-upon the second trial of this case in the light of the principles here announced, none of the points not specifically dealt with are at all likely to arise. We have reached the conclusion, after mature deliberation, that a new trial should be granted to the propounder, and accordingly send the case back for another hearing.
Judgment reversed.