Bassett v. Hunter , 205 Ga. 417 ( 1949 )

1. The language of the several excerpts from the charge complained of in the first special ground of the motion for new trial, when considered in connection with the entire charge, is not subject to the criticism that it was confusing to the jury and eliminated from their consideration the question as to whether or not the will was witnessed before or after the testatrix signed.

2. The language of the charge complained of in the second special ground is not subject to the criticism that it placed upon the caveator the burden of proving each and every allegation in his caveat.

3. The language of the charge complained of in the third special ground is not subject to the criticism that it excluded from the consideration of the jury the condition of the mind of the testatrix prior to and after the making of the will.

4. The request to charge that the will would not be legal if the testatrix signed her name after the attestation of the will by the witness was necessarily included in the charge as given, that the witnesses must subscribe their names after the will was signed by the testatrix.

5. Where the question of attestation of a will by the witnesses in the presence of the testatrix was not raised by the caveat, but was raised by the evidence, the court did not err, in the absence of a request, in failing to charge on that question.

6. The evidence, though conflicting, was sufficient to support the verdict in favor of a probate of the will.

No. 16682. JUNE 15, 1949. Mrs. Obell James Bassett executed her will on December 6, 1947, and died on December 23, 1947. She devised all of her property first to her mother, Mrs. Martha James, and second, in the event her mother predeceased her, to Elizabeth James, a sister of the testatrix. She nominated Mrs. Viola Hunter, another sister, as executrix. The latter filed a petition in the Court of Ordinary of Floyd County to probate the will in solemn form. George E. Bassett, the testatrix's husband, filed a caveat on the grounds, that the testatrix was not of sound and disposing mind and memory, did not execute the paper in the presence of the witnesses who were named in the application to probate the will, did not know that the paper was her will, and therefore the execution was fraudulently procured and was not the voluntary act of the testatrix. After a hearing the ordinary admitted the will to record as proved in solemn form, and the caveator appealed.

On the trial in the superior court, Dr. Cliff Moore Jr. testified in part for the propounder: He treated the testatrix during her last illness. She left the hospital several weeks before her death, stayed clear mentally right up until she left the hospital, and was able to understand conversation and transactions during her stay in the hospital. She had cirrhosis of the liver and occasionally it was necessary to give narcotics to alleviate her pain. For a couple of hours after she had taken dope she would not be capable of transacting business. The witness did not know whether or not she was under the influence of opiates on the day the will was executed.

J. C. Sanders, a witness to the will, testified: Mrs. Hunter asked him if he would get somebody to witness a will. Mr. Jones and Mr. Stagger were outside the hospital, and he told them what she wanted. The testatrix said she could not write much, and asked if it would be all right for Mrs. Hunter to sign her name for her. When Mrs. Hunter had signed the testatrix's name, the witness asked the testatrix if that was her will and if she had read it, or it had been read to her, and if that was what she wanted in it, and she said it was. She touched the pen of her own free will. The condition of her mind was good. Her mark was placed there in the witness's presence and in the presence of the other witnesses before they witnessed the will. Each of the witnesses signed in the presence of the testatrix and in the presence of one another.

J. D. Stagger, another witness to the will, testified: He was present when Mrs. Hunter signed the testatrix's name and the testatrix made her mark. The testatrix was in a mighty weak condition, but she talked reasonably. Mrs. Hunter signed the will and handed it over to the testatrix and she made a mark. Nothing was said concerning the will that the witness heard. After the witnesses signed the will, the testatrix made her mark. She did not ask the witness to sign. Mr. Sanders just told him there was a lady that wanted it signed. That conversation took place out of her presence. When the witness signed he was standing kind of sideways to the testatrix. She knew he was writing but she could not have seen what he was writing. Of course she knew he was writing his name. She could not have seen by turning her head.

P. S. Jones, the third witness to the will, testified: The Testatrix's mark was made while they were there, but after they witnessed the will. The testatrix seemed to understand what was being said and done. Nobody made her put her mark on the will. She appeared to do it of her own free will and accord. The witness did not hear a will mentioned while he was in there, and did not know what the paper was that they signed. Mr. Stagger said later that she had made her will. The testatrix made her mark while she was lying down. From there she could not have seen the witnesses sign. She could have seen by turning her head.

Mrs. Grace Britt testified for the caveator: She saw the testatrix several times during her last illness but did not talk with her while she was in the hospital. The testatrix's mental condition during those conversations was not good. Her mind seemed to wander at times.

Cresia Pullin testified: She visited the testatrix once at the hospital. The testatrix was so sick then that she did not talk very much.

George E. Bassett, the caveator, testified: The testatrix was his wife and they lived together for 17 years. He had been unwell about a year or two and was bedridden when she was carried to the hospital. She had been waiting on him and caring for him until she became ill. During the last part of her illness, before she was carried to the hospital, the witness could tell she was not right.

John Maddox testified that he prepared the will at the request of Mrs. Hunter. The attestation clause was in the usual form.

The jury rendered a verdict in favor of a probate of the will. The caveator made a motion for new trial, which was amended by the addition of special grounds complaining of excerpts from the charge, the refusal to give a requested charge, and the failure, without request, to charge. The court overruled the motion for new trial as amended, and the case comes to this court upon the caveator's exceptions to that judgment. 1. The first special ground of the motion for a new trial complains of the following excerpts from the charge to the jury: "The question you are to decide, gentlemen, is whether this will was executed by the deceased, . . [the testatrix], and if she did, whether she was in a sound and disposing mind and memory. The caveator, the husband, in his caveat, sets forth two grounds. The first ground is that she was not of sound and disposing mind and memory at the time of the execution of the will, and therefore incapable of executing a valid will. And the third ground was that the testatrix was deceived, fraud was practiced upon her in the execution of the will, and for those reasons the will should not be probated. Those grounds are denied by the petitioner, who files an application for probate in solemn form of the will of the testatrix in question, and that is the issue which you are to settle by your verdict, gentlemen, whether she was or was not capable of making and executing a valid will at the time the will was executed, if one was executed." "And the defense of the defendant being what is known as an affirmative defense, mental incapacity and deceit and fraud, that testatrix did not have mental capacity to make a will or that fraud was practiced upon her, then I say the burden would be on the defendant." "And if the jury finds that the testatrix had sufficient mental capacity at the time of the making of the will, the jury cannot lawfully set aside the will." "The only question in this case for you to determine is whether, at the time that will was made, she had sufficient testamentary capacity to understand and know and realize rationally what she was doing, and if she did, that was her exclusive right and province." "The court has undertaken to give these rules of law when passing upon the two issues raised by the caveator in this case, whether there was any fraud or deceit practiced upon the testatrix or whether she was of sound mind and memory, competent and capable of disposing of property at the time of the execution of the will. If you find that she was so capable, gentlemen, had that understanding about which I have been charging you, no fraud and no deceit was practiced on her, then you ought to find in favor of the probating of the will. On the other hand, if you find that she did not have this testamentary capacity, this understanding about which I have been charging you, this capacity to make a will and dispose of her property, conscious of what she was doing, or that deceit or fraud was practiced upon her to vitiate that will, then you ought to find against the probate of the will, and your verdict will be as you may determine the truth of the transaction to be."

The language of these several excerpts from the charge, when considered in connection with the entire charge, is not subject to the criticism that it was "confusing to the jury in that it limited their consideration to only a portion of the caveat to the will and effectively eliminated from the consideration of the jury the question as to whether or not the will was signed and witnessed before or after the testatrix signed."

2. The second special ground complains of the charge: "And the defense of the defendant being what is known as an affirmative defense, mental incapacity, deceit and fraud, that testatrix did not have the mental capacity to make a will or that fraud was practiced upon her, then I say the burden would be upon the defendant in that case to prove by a preponderance of the evidence that all the material allegations of his contentions, that is the contention of . . . the caveator, are true." The criticism is that the court erred in charging that the burden was upon the caveator to prove all the material allegations, whereas the caveat should have been sustained if any of the grounds therein was established.

After giving the above charge the court instructed the jury that they should find against the probate of the will if they believed that the testatrix did not have sufficient testamentary capacity to make the will, or that fraud was practiced upon her in the execution of the will. Since the jury was clearly instructed that they should find against the probate of the will in either of the events mentioned, it could not reasonably be said that the jury understood the court to mean that all the material allegations as to mental incapacity, and fraud should be proved.

3. The third special ground complains of the charge: "Testamentary capacity is to be determined by the condition of the testatrix's mind at the time of executing the will. Notwithstanding her incapacity at a prior or subsequent time should be proved, it does not necessarily follow that she was incompetent when the will was made."

This portion of the charge correctly states that the condition of the testatrix's mind at the time of signing the will is the determining factor, and the language complained of is not subject to the criticism that it excluded from the consideration of the jury the condition of the mind of the testatrix prior to and after the making of the will. See, in this connection, Fehn v. Shaw,199 Ga. 747, 754 (35 S.E.2d 253), and citations.

4. The fourth special ground complains of the refusal to charge: "If you find from the evidence as presented to you that the testatrix signed her name or made her mark after the attestation of the will by anyone or all of the witnesses, then I charge the will is not legal or valid."

The court in the charge as given instructed the jury: "The witnesses to a will must subscribe their names as witnesses after the will is signed by the testatrix, that is, there being nothing to attest until her signature has been annexed. It makes no difference that the signing and attestation are each a part of one and the same transaction."

While the trial judge in his general charge did not use the language requested, nevertheless, the principle that the will would not be legal if the testatrix signed her name after the attestation of the will by the witnesses was necessarily included in the charge that the witnesses must subscribe their names after the will was signed by the testatrix. Accordingly, the request was sufficiently covered by the charge as given. Griffin v.Barrett, 185 Ga. 443, 446 (4) (195 S.E. 746).

The fifth special ground complains of the failure of the judge to charge, in the absence of a request, on the question of law in regard to the attestation of a will by the witnesses in the presence of the testatrix.

There is no merit in this ground. While one witness testified that when he signed as a witness the testatrix was in such a position that she could not observe his signing, the failure of the court to charge the law as to attestation by the witnesses to a will was not error, in the absence of a special request so to charge, when, as here, no issue in this respect was made by grounds of the caveat. Palmer v. Hinson, 201 Ga. 654 (3) (40 S.E.2d 526).

The evidence, though conflicting, was sufficient to support the verdict in favor of a probate of the will, and the court did not err in overruling the caveator's motion for new trial. SeeWhitfield v. Pitts, 205 Ga. 259 (1) (53 S.E.2d 549).

Judgment affirmed. All the Justices concur.