Carter v. Dixon , 69 Ga. 82 ( 1882 )

SPEER, Justice.

This writ of error brings to us for review certain errors complained of in a motion for new trial, which was refused in the court below. The issue there was the propounding of a paper for probate, which the jury sustained as the last will and testament of Josiah H. Carter, deceased.

1. The first and second grounds of the motion we deem it unnecessary to consider, under the abundant evidence this record affords in support of the verdict.

2. We think the charge of the court complained of, as set forth in the third, fourth and fifth grounds, was correct, being given largely in the language of the Code itself, and the issues presented by the court covered all that there was evidence to support.

3. The fifth ground of error is, “ because the charge, as a whole, was illegal, in failing and omitting to state all the issues involved in said case, and the law applicable to said issues.” This ground of error is too general and indefinite. The rule of this court requires the plaintiff in error to specify distinctly the points of error in the judgment of the court below. Code, p. 954., Rule 8, §4251. The plaintiff should have stated in his exceptions what issues were omitted, to be charged upon by the court. To require a reviewing court to scan critically an elaborate charge, covering many pages of manuscript, to search for errors, which the plaintiff should specify, is not demanded at our hands.

4. The request to charge, asked for as set forth in the sixth ground of the motion, and which was refused, may be, and probably is, correct as an abstract proposition of law, but we see nothing in the evidence in this case which would make it applicable here. In traveling through this voluminous record of evidence we cannot recall a single line showing Dixon, or any one else, “ moved ” this testator either “ to appoint him his executor or give him his goods.” On the contrary, the evidence is the reverse. Requests to charge must be based upon evidence in the case on trial, and not on pleadings or theories that exist alone in the minds of disappointed suitors.

5. A part of the request to charge, as asked for, and complained of, as refused in the seventh ground, that is the part that refers to undue influence, was given substantially by the court in his general charge, and need not have been repeated. But the latter clause of said request we think was error, as expressed in these words, and was properly refused : “There are some relations in life where a presumption of undue influence arises, such as writer and testator, parent and child, and other fiduciary capacities — particularly when it appears, if it does from the evidence so appear, that the writer was made the executor and his relations received a considerable portion of the estate devised ; this presumption must be rebutted by proof, if you believe the evidence establishes these facts.” Is it a presumption of law that one who writes a will, and is nominated executor, and his family are beneficiaries under it, that by so doing, as the draughtsman, that he exercises an undite influence over the testator, and it must be rebutted by proof in order to set up the will? We cannot subscribe to sucha rule. It certainly is legal for a draughtsman to write the will of a testator and be the nominated executor, and for his family to be beneficiaries under it; and, if this is legal, does the law pronounce such an act presumptive evidence of undue influence, which must be rebutted by proof? We think not, and the court was right in refusing this request. Undue influence is an issue that must be established by proof; it must, in order of itself to vitiate a will, go to the extent of substituting the will of the one charged with such conduct in place of the will of the testator; the proof' must show the undue influence to amount “to moral coercion.”

6. The requests to charge, the refusal of which are set forth in the eighth, ninth and tenth grounds of the motion, may be considered together, as they involve the question of the capacity of a testator who is a monomaniac and one who executes a will under a delusion, under the belief that certain facts are true when they did not exist, and also the law of partial derangement. These requests were refused, and error is assigned thereon. Without determining the question whether these charges enunciated correct legal propositions, we can only say we find no evidence in the record on which to base them. The evidence shows Mrs. M. R. Carter, the widow of testator’s son, was at one time a favorite with the testator, and that subsequently, owing to certain family troubles and rumors, a coolness and alienation ensued, and it was alleged that Dixon, the son-in-law of testator, took advantage of these circumstances to prejudice the mind of testator against her and her children, and this led to a delusion, under the influence of which testator made his will when he did not have testamentary capacity as to this branch of his family. But, admitting all that has been proved of the alienation of testator, we can find no evidence that Dixon used these rumors to the prejudice of Mrs. Carter and her children in the execution of this will. A testator may entertain his animosities, cherish his prejudices, and nurse his wrath against heirs at law of his estate, and he may be guided and controlled by them in the disposition of his property; still, if he is competent in mind and makes a will freely and voluntarily, these conditions of his mind will not per se destroy his testamentary capacity. And though his prejudices may be unfounded, still, if they are not used to coerce and control his will, or impose a fraud upon him, they are harmless. To make these mental conditions available, it must appear that under their influence he was coerced or fraudulently induced to make a will that would not otherwise have met his approval, by one who used them for that purpose, and thus, by this undue influence or fraudulent conduct, substituting his own wishes as a will for the testator. It is not lawful for one fraudulently and falsely to bring such influences to bear upon the mind of a testator, to act thus upon his prejudices, animosities, fears, sympathies or affections, and thus induce him to make a will that was not his own voluntary act, and so the court instructed the jury that such a will would be void. But this record discloses no such conduct or action to the extent declared.

There is no evidence that this will was the offspring of a delusion. The testator may have entertained unfounded prejudices against Mrs. Carter and her children, still if they were not fraudulently used to acquire dominion over him, and thus make a will for him, they would not affect his capacity to dispose of his property. Some writers contend that delusion is one of the tests of insanity and is evidence thereof, but the evidence discloses no such state of mind in testator in the execution of this paper. We have to deal with the human mind and heart as we find them. They are liable to indulge in prejudices and partialities — prone to condemn, and, unhappily, less prone to forgive. But unless these evil thoughts and emotions are made the manacles to bind the will of the testator and deliver it helplessly to the dominion of another, or they are used fraudulently to deceive and procure a will made by reason of such influences, testamentary capacity still exists so long as the mind is sound and the will is free.

7. We cannot see the relevancy of the testimony excluded by the court as complained of in the tenth ground of the motion, and there was no error in doing so. Neither was there error in refusing to allow the witness, Mrs. Carter, to go into the details and circumstances of the difficulty between Dixon and her brother. The fact of the difficulty was only competent to show the state of feeling, and this was proved by the testimony already in, without the particulars.

We find no error in the remaining grounds of the motion for a new trial, or they are so immaterial as not to affect the merits of the case, or to unsettle a verdict which is abundantly supported by the law and facts on'the true issues involved.

Judgment affirmed,