Pope v. Pope , 95 Ga. 87 ( 1894 )

Simmons, Chief Justice.

T. T. Pope died July 20th, 1891, leaving an estate consisting mainly of realty, valued at upwards of $20,-000. By a will dated May 14th, 1891, he gave $800 to his wife, Martha J. Pope, in lieu of dower, $500 to the children of his deceased daughter, Mrs. Yaughn, and $500 to the children of another deceased daughter, Mrs. Pierce; and the residue of his estate was to be divided equally between his surviving sons and daughters and one grandchild. By a codicil dated May 25th, 1891, the share of one of his daughters, who had died subsequently to the date of the will, was given to his other children. Afterwards he made a deed, dated July 1st, 1891, conveying his real estate to the same persons to whom his property had been devised, except his wife and the grandchildren first mentioned, the consideration expressed in the deed being $10, and love and affection to the grantees. When the will was offered for probate, the widow and these grandchildren filed a caveat, on the ground that at the time of its execution the testator was non compos mentis, and that the same was obtained by the exercise of undue influence on the part of his sons, C. W., J. T. and N. Q. Pope. A petition to set aside the deed was filed by the same parties upon similar grounds, which are set out in the reporter’s statement. The effect of this deed, it was alleged, was to cut the plaintiffs entirely out of participation in the grantor’s estate, his personalty not being worth more than $700 or $800. The ordinary found in favor of the will, and the caveators entered an appeal to the superior court. In that court both cases were tried together, and the jury found in favor of the will and against the deed; whereupon a motion for a new trial was made in each case by the losing parties. In addition to the general grounds that the verdict was contrary to law and the evidence, the motion in the will case was based upon the grounds hereafter set out in the first and second divisions of this opinion, and the motion in the deed case upon the grounds dealt with in other parts of the opinion.

1. It was complained that the court erred in charging the jury as follows: “If, on May 25th, 1891, T. T. Pope, deceased, executed a codicil to his will'of May 15th, 1891, and in this codicil referred to and recognized the previous will as his will, this would amount to a republication of the original will, and would render such original will valid, provided the codicil was executed voluntarily by the testator and he had a sound and disposing mind, and the codicil was not itself invalid under some of the principles of law given you in charge by the court.” This was alleged to be error, because there was no evidence which established that T. T. Pope, at the time of making the codicil, knew- what was in the will of May 15th, 1891, and no evidence that the same was read over to him on that occasion; and further, because the codicil was not attached to the will.

The court did not err in the charge complained of. The codicil expressly refers to the will as follows: “I, T. T. Pope, ... do make the following codicil to my will of May 15th, 1891, as since said will my daughter, Lutisha Redding, has departed this life. . . . The share of my estate . . that under the provisions of my said last will would have gone to my deceased daughter Lutisha . . is to be diverted from her, her estate or heirs, . . and turned over to my surviving children,” etc. This sufficiently identified the will, and rendered it unneces-' sary that the codicil should be attached to it. “The annexation need not be physical, provided the language of the codicil is sufficiently clear to identify the will referred to.” 3 Am. & Eng. Enc. of Law, title Codicil, p. 292; Beach on "Wills, §81, and authorities cited. Nor was it necessary that the original will should be read over to the testator at the time of executing the codicil. The will having been properly identified, it will be presumed that the testator knew its contents, and the due execution of the codicil amounted to a ratification and republication of the will. Code, §2478; Jones v. Shewmake, 35 Ga. 151, 154; Burge v. Hamilton, 72 Ga. 568.

2. It was complained that “ the court erred in allowing O. W., N. Q. and John Pope to testify with reference to statements made by T. T. Pope with reference to the execution of the deed and of the will; counsel for Mrs. Martha Pope having made a general objection to the competency of said witnesses to testify, either as to what the testator said with reference to making the will or the deed, upon the ground that they were beneficiaries under the will, executor of the will and parties to the suit to probate the will, and vendees in the deed and parties to the suit to set aside the deed, the other parties to the contract being dead.” This assignment of error is too vague and indefinite for consideration and determination by this court. "Where the admission of testimony is assigned as error, the bill of exceptions or the motion for a new trial should set out the testimony objected to, or the substance of it. It is not enough that the testimony may be found in the brief of evidence. As was said in a former decision of this court: “Whether it might be ascertained by looking out of the motion and exploring the brief of evidence, we are not called upon to say, inasmuch as our dealings are only with errors plainly and distinctly assigned.” Sweat v. The State, 90 Ga. 325. Even if these witnesses were not competent to testify as to anything at all said by the testator upon the subject mentioned in the assignment of error, the illegal testimony may not have been so far material or prejudicial as to require a new trial; and in order to determine as to this, it would be necessary to know what the testimony -was.

3. One of the grounds of the motion for a new trial in the deed case was, that the court admitted in evidence, over the objection of the defendant that the same was irrelevant, a bottle containing a white powder and bearing a label with the inscription “ poison ” and the picture of a skull and cross-bones thereon ; also a note, and the testimony of certain witnesses as to the finding of the bottle and the note. There was evidence that the note when found read as follows: “ Martha (or Mattie): Give Mr. T. T. P. J of this bottle will kill the old devil don’t put in his eggs as you did before put it in his coffee watch Mr. C. & J. I will come out Sunday again. C. W.” Mrs. Pope, the plaintiff, was named Martha, and was also called Mattie, and O. W. were the initials of Mrs. Woodward, her brother’s wife, who frequently came to see her at the grantor’s house during his last illness, and usually came on Sunday. The theory of the plaintiffs was, that certain of the defendants, in order to induce the grantor to make the deed and exclude his wife from participation in the property conveyed, had caused him to believe that she intended or had attempted to poison him. There was some evidence tending to show that the note in question was in the handwriting of one of the grantees, a son of the grantor, who was with him frequently about the time the deed purported to have been made ; and the plaintiffs sought to make it appear that the writer of the note had thereby attempted to create the impression upon the mind of the grantor that some other person, probably Mrs. "Woodward, had written the note to Mrs. Pope and knew of an attempt on her part to poison him. It was objected that there was no evidence that the grantor’s attention had been called to the bottle and note prior to the execution of the deed. It is true the weight of the evidence is to the effect that the Pottle and note were not found until after the date of the deed, but there was some evidence tending to show that they were found before that time; and there was evidence that prior to that date, about a month or six weeks before his death, he had expressed fears of poison and required his wife to taste his food and medicine before he would take it. There was no evidence, outside of the deed itself, showing that the deed was actually delivered at the time it purported to have been made, or as to when it was actually delivered. That something had been said to the grantor about this bottle and his wife in connection therewith, could be inferred from a statement which appears to have been made by him to her brother, soon after bottle and note were found, that he was afraid “ they ” were not going to do right by her, that they had been telling him something about a bottle of poison, and had come telling him “a rigmarole about poison being found near the knitting mills.” It appears that the bottle and note offered in evidence were found near the knitting mills, a short distance from the grantor’s house. There was evidence as to bad feeling towards Mrs. Pope prior to the date of the deed, on the part of the grantee who was supposed to have written the note, and other grantees therein. These grantees were children of a former wife of the grantor, and had opposed his marriage to the plaintiff'. If the note was written by this grantee, it tended, in connection with the statement of the grantor above referred to, to show the existence of a scheme to prejudice the grantor against his wife, which may have antedated the delivery of the deed and operated to induce the same. Even if the parties concerned in this scheme did not bring the note and bottle to the grantor’s attention until after the deed was made, we cannot say that the evidence in question is wholly without significance as to their motives and conduct previously. Its probative force was for the jury.

4. Certain sections of the code and parts of other sections read by the court to the jury in charging them, as to the law of duress and as to fraud and undue influence, were not strictly pertinent or applicable to the facts of the case. This, however, was not, in this case, reversible error, it not being at all probable that the jury were thereby misled as to the real issues of fact presented for their determination.

5. There was sufficient evidence in each case to warrant the verdict rendered therein; and it appearing that substantial justice has been done, and the result having been approved by the trial judge, his refusal to set these verdicts aside will not be reversed.

Judgment affirmed.