110 Ga. 10 | Ga. | 1900
This case is here for the third time. At the October term, 1894, we held that the declarations of the testator, while admissible to show the state of his mind at the time of executing his will, were not competent for the purpose of showing that a fraud had been practiced upon him with the object of affecting the testamentary disposition of his estate. 94 Ga. 804. At the March term, 1896, the only question passed upon was whether or not an heir at law, who seeks “to render a will inoperative as to him on the ground that it was executed under a mistake of fact as to his existence, is bound to show affirmatively that, but for- such mistake, he would have been named in the will as a beneficiary.” We decided that such an heir was not so bound. 98 Ga. 729. The case is before us again, and the question upon which it now turns is one which was not presented by the record sent up to the term last mentioned, viz.: Is the law now embraced in section 3262 of the Civil Code (Code of 1882, §2403) “applicable in a case where it appears that the testator knew of the existence of the person claiming to be his heir and acted upon an erroneous conclusion as to the fact of relationship ?” The code section reads as follows : “A will executed under a mistake of fact as to the exist-
We are, however, of the opinion that even if the above is a correct interpretation of the meaning of the code section under consideration, and even if Mrs. Young was a niece of the testator, which seems to be conceded, that section is not applicable to the present case. Ellerbee, the testator, not only knew Mrs. Young, but he knew as well that she claimed to be his niece and nearest of kin. She informed him that she was the daughter of his deceased brother; and, under the belief that she was, he invited her to his home and treated her as a near and dear relative. Subsequently he for some reason withdrew from her his affection and confidence, and refused to longer extend to her his hospitality. 'As a consequence, she returned to her home in Texas. About seven years later he made his will without naming her 'therein. It was earnestly argued here that he pursued this course solely because of the fact that he was deceived by false and fraudulent representations to the effect that Mrs. Young was not related to him at all, but was the daughter of his
But be all this as it may, it is certain that Ellerbee, at the time he made his will, was neither under a mistake of fact nor ignorant of the existence or conduct of Mrs. Young for want of information or the opportunity to obtain it. 'There is a difference between a “mistake” arising from mere ignorance and one which results from an error of judgment after investigation or from negligent or willful failure to make a proper investigation by means of which the truth could be readily and surely ascertained. It is to such a mistake as that first indicated that section 3262 applies. It could not have been intended to operate in instances of the latter character. If Ellerbee disinherited his niece because convinced that she was not his niece, he deliberately arrived at his conclusion of fact after an investigation satisfactory to himself, without choosing, as he might easily have done, to make one more thorough and searching. That his conclusion was wrong affords no cause for destroying his testamentary scheme. It was a question to which his attention was directly called, and he had the undoubted right to decide it for
. It was also argued that Ellerbee certainly acted under a mistake of fact as to the “conduct” of Mrs. Young, in that he erroneously believed she was an impostress, when the contrary was true. Under the particular facts of this case, mistake as to conduct can not be dissociated from mistake as to existence. The one necessarily depends on the other. If Ellerbee was satisfied that Mrs. Young was his niece, he could not have been mistaken as to the propriety of her conduct in claiming so to be. If convinced that she was not, his mistake or error in this respect necessarily rendered-the resulting erroneous belief that she had acted in bad faith of no consequence; for it was traceable solely to the first and main error and was a mere sequence therefrom. Clearly, our statute contemplates that the testator’s action must be shown to have been based upon a misconceived
We find xio cause for revei’sing the jxxdgment. If Ellex’bee knew that Mrs. Young was his nearest of kin axxd deliberately-disinherited her, that certainly would exxd the matter. If he did not know of her relationship to him, it was becaxxse of incredxxlity or xxegligence rather than of mere ignorance or mistake. And lastly, it can not with any degree of certainty be known that he was really in error on this point, or that, if so, the ■error actually'- affected the tenor of his will.
Judgment affirmed.