Walker v. Roberts , 20 Ga. 15 ( 1856 )

By the Court.

Benning, J.

delivering the opinion.

Among the grounds of caveat to the will in this case were' these: that Thomas K. Slaughter, a chief legatee, procured the execution of the will by the use of fraud,- of violence, and of undue influence towards the testator. Inone of the specifications it is said “ that said Thomas E. Slaughter, by violent and lawless conduct, for a long time before said will was executed, and always afterwards, had and exercised control over the will of said James M. Johnson, through the fears of' said James M. Johnson, that said Thomas E. would do or cause to be done him great bodily harm.”

' The violent and lawless conduct existed, it is charged, “fora long time before said will was executed and always after-wards.”

The object of this specification, probably, was to charge that Slaughter’s lawless and violent conduct, existing before the-will was written and afterwaids, as long as the testator lived, was the cause both of the testator’s making the will and of' his never revoking it. But this, if the object, is rather obscurely expressed.

The testator, when he made the will, was under age; was about eighteen years old — he died under age.

At the time when he made his will, he resided in Jasper County — he had been residing in that county for some months before.

Cabaniss, who had been appointed his guardian, resided'in the County of Monroe — Cabaniss had, however, before the making of the will, ceased to be his guardian, by becoming the Ordinary of Monroe County. But Cabaniss thought that he still had the right to act as guardian, until a new guardian should be appointed, and therefore, that he had the right to the custody of the testator. And, accordingly, he continued' to act as guardian and tried repeatedly to get the testator, from Jasper to his house in Monroe. To effect this object, he, on one occasion, sent two young men to Slaughter’s for the testator. These young men went to Slaughter’s for the-testator. And in reference to this visit the bill of exceptions-has the following statement: “ And when James II. Johnson* was giving in.his evidence, caveators, after proving by him. that after the second hurt of testator he was applied to by a Mr. Holder and another gentleman to accompany them to Mr. Slaughter’s, with a letter from Mr. Cabaniss to the witness, asking him to go with them to Mr. Slaughter’s, and who were sent over by Mr. Cabaniss to carry testator to Forsyth; witness directed the gentlemen to go on and he would overtake them, but they arrived a few minutes in advance of him ; and when he tied his horse he heard Mr. Slaughter’s voice in an angry tone. Then caveators offered further to prove, that the conduct of Thomas K. Slaughter, upon that occasion, to those two young gentlemen, was very harsh and disrespectful to them.”

“ And this testimony, so offered to be proven, was ruled out by the Court, on the ground that the evidence was not relevant, because Mr. Cabaniss was not guardian of testator, and had no right to intermeddle with testator in any respect.”

Was this decision right?

One of the issues was, whether the will was first brought into existence and was then kept in existence by the lawless and violent conduct of Slaughter.

Now any facts going to show that Slaughter, whilst the testator was staying at his house, by rudeness, insults, threats, commands or other harsher conduct, prevented the friends of the testator or the messengers of those friends, from having free and private access to him, or from removing him if it was his wish to be removed, would be evidence from which, in connection with the other evidence, a Jury might or might not make the inference that Slaughter held the testator in his power and under his control and intended to continue doing so; and if this should be the inference the Jury would make, they might or might not go further, and make the additional inference that Slaughter was using this power and control for the purpose of keeping the testator up to the will he had written and preventing him from changing it; that is, for the purpose, virtually, of procuring him to let the will, as written, become in law his will. A writing cannot, in law, be a will, until after the death of its author. . To prevent a roan from changing a writing intended for his will is, therefore, to procure him to make a will. -

If, therefore, the facts of which Johnson would have testified would have been such as these, they would have been pertinent to the issue aforesaid. The Court, therefore, should have heard them; and if it had found them such, it should have admitted them to the Jury.

When facts are such that the Jury may or not make from them an inference pertinent to the issue, they are such $a ought, in general, to be admitted in evidence to the Jiiry. •

The Court below considered the facts in question as rendered irrelevant, by the fact that Oabaniss had ceased to be the guardian of the testator; and therefore, had ceased to have any right over him. Still, it does not appeaf that Cabaniss had ceased to be a friend of the testator. And if he occupied that relation, the evidence, in the view we have taken of the subject, was admissible, especially as the testimony of one witness, Johnson, was, that “ testator told witness not to let any one know of his appointment to leave Slaughter’s house the next Tuesdayand of another, Darden, was, that “ he” testator, “ had told witness'at another time, after he was hurt by his horse at Mr. Slaughter’s, that he wanted witness to get his horse and go away from there, for he was afraid he would be killed if he stayed there.”

But, indeed, so far as the question of the motives of Slaughter for his conduct to the two young men sent from Cabaniss for the testator is concerned, it is very doubtful whether that question is at all affected by the fact that Oabaniss had ceased to be guardian for the testator, and had ceased to have any control over him; for although this was really so, yet Slaughter did not believe that it was. He thought as Oabaniss did, that Cabaniss’s power as guardian still remained. This is shown by his promise to Oabaniss, made at the time when he went to Cabaniss’s for the testator’s trunk, to send the testator back to him in a few days; and also by his demanding, and receiving payment from Cabaniss as guardian, of an ac■count which he had for the board and some other expenses of the testator.

[1'.] We think, therefore, that the Court should hare ■heard the testimony of the witness, Johnson, as to what occurred at the time when the two young men went to Slaughter’s for the testator-; and that if that testimony had turned -cut to be su,ch that the Jury, on hearing it, might or might not have inferred from it, in connection with the other testimony in the case, that Slaughter had the testator in his power or under his control, -and in order to prevent him from making any change in the will, intended to keep him so regardless of his, the testator’s wishes on the subject, then that the Court should have admitted the testimony to the Jury.

Wé are not sure that we understand the charge made by the Court, as to the Manic in the will. Supposing, however, the Court’s meaning to have been this: “ If the testator, in leaving a blank in the will for a negro’s name, intended the will not to be operative as to the other negroes and'' other' property mentioned in it, until the. blank was filled, then the will did not become, complete until the blank was filled, and filled in the presence of those witnesses ; but if the testator, in leaving the blank, intended that the will should be operative as to the other negroes and other property mentioned in it, whether the blank was ever filled or not, then the will was complete as to those negroes and that ■property, whether the blank was ever filled or not; and, if the blank was filled afterwards, whether the filling of it was done in the presence of the witnesses or not, was a ques•tion which could affect the will’s operativeness only as to the negro whose name was inserted in the blank, and not as to the other negroes and other property mentioned in the will.” Supposing this to have been the meaning of the Court, the charge, it is clear, was right.

The evidence did not, as it seems to us, authorize the following request:

“ That insanity, or partial insanity only, upon a particular ■.subject, or as to a particular person, is unsoundness of mind; and'if the will be the offspring of such insanity, it will be invalid although the general capacity be wholly unimpeached.” The objection which the Court made to giving the remaining request in charge, was founded upon the language of the request. And the language of the request does seem to us objectionable, even if it be such as may, perhaps, admit of an interpretation expressive of a true legal principle. What connection is there between the last clause of the request and any of the preceding part of it ? And then, practically, what guide is it to a Jury to tell them that a transaction is to be viewed “ with jealousy f”

The circumstances enumerated in the request would, if they existed, be such as doubtless ought to raise a “ suspicion;’' but a suspicion of whar? A suspicion of undue influencer or of fraud, fíe. — a suspicion that should, unless wiped off by other circumstances in the case, prevent the will from being established. The request, if stated after this fashion, would have been free from objection.

In granting the new trial, therefore, our decision is put upon a single ground: the refusal of the Court to hear what the witness, Johnson, had to say about what occurred at Slaughter’s when the two young men went there for the tes tator.