Adler v. Adler, 17212

• Decision Date: 09 October 1950
• Docket Number: No. 17212,17212
• Citation: 61 S.E.2d 824,207 Ga. 394
• Parties: ADLER et al. v. ADLER.
• Court: Georgia Supreme Court

Page 824

61 S.E.2d 824

207 Ga. 394

ADLER et al. v. ADLER.

No. 17212.

Supreme Court of Georgia.

Oct. 9, 1950.

Motion for Rehearing and Amendment Thereto Denied Nov. 15, 1950.

Syllabus by the Court.

1. No objection having been urged by the propounders at the time, there is no merit in the insistence that the court erred in disqualifying four jurors on voir dire.

2. There is no merit in the contention that, even in the absence of a motion for mistrial, the imposition of a fine on one of the propounders, while she was testifying, on account of improper remarks which she made to an attorney for the caveator, was prejudicial and required a new trial.

3. The contention of the propounders that the court erred in permitting an accountant to testify regarding a recasting of accounts is not cause for reversal where, as here, substantially the same facts as to what a recasting of the accounts would show was contained in a copy of a suit which was introduced in evidence by the propounders.

4. A caveator is entitled to prove everything he alleges in his caveat upon which he is permitted to go to trial without objection on the part of the propounders.

5. The hypothetical question propounded to an expert witness in the present case was not subject to the objection that it was a conclusion.

6. The contention that the court, without any request, should have defined circumstantial evidence, and instructed the jury further on that subject, is without merit.

7. The evidence taken as a whole was sufficient to authorize the verdict in favor of the caveator on the issue as to undue influence.

One phase of this litigation was before the Supreme Court in Adler v. Leopold Adler Company, 205 Ga. 818, 55 S.E.2d 139.

Leopold Adler executed his will on December 2, 1944, to which three codicils were added respectively on February 2, 1946, April 24, 1947, and May 9, 1947. He died on January 13, 1948. In item 9 of the will he devised the residue of his estate to be held in trust for his five children, Rena Frank, Elsie Ackerland, Olga H. Adler, Sam G. Adler, and Melvin L. Adler, share and share alike. The child or children of any deceased child were to stand in the place of the parent and take per stirpes. The codicil dated April 24, 1947, except for a small bequest to grandchildren, disinherited Melvin L. Adler and his two boys. Olga H. Adler and the Savannah Bank & Trust Company, as executors, filed for probate in solemn form the will and the three codicils thereto. Melvin L. Adler filed a caveat on the grounds of undue influence and fraud, and objected to the probate in so far as the codicil dated April 24, 1947, was concerned, and in so far as the codicil dated May 9, 1947, was a republication of the codicil dated April 24, 1947. The will together with the codicils was admitted to probate, and the caveator appealed the case to the superior court.

The codicil executed April 24, 1947, states that the caveator was disinherited because on March 17, 1947, he brought a suit against the testator.

When the issues came on for trial, the caveator admitted a prima facie case in favor of the propounders in order to obtain the opening and concluding arguments.

Dr. Harry Y. Righton, sworn for the caveator, testified substantially as follows: The witness treated Mr. Adler in 1939 for prostrate gland trouble following a cerebral hemorrhage. At that time he had some pressure symptoms 'in both leg, arm, face and tongue.' The leg and arm had cleared up to a large extent, but he still showed evidence of some facial paralysis, as well as his tongue. His tongue was thick and his mouth had fallen a little bit. He had a rubber tube in the bladder that has to be dressed and kept clean. This was done by Olga who had every influence over him. He would receive dictation from her but he would not listen to anybody else. Any person having a hemorrhage of the brain is prone to extreme excitement; and if he has anything exciting on a subject he is antagonistic to, he probably will not use the same reasoning powers as a man who has not had a hemorrhage. When senility is conjoined in a man of 86 to a brain hemorrhage, his ability to distinguish the merits of anything will depend entirely upon what subject is approached. At times he will be just as reasonable. Again, if a matter comes up that arouses or angers him, he will naturally not be in a position to decide what is right or wrong. If such a man should be controlled by someone, who saw him to the exclusion of almost everybody else, he would naturally be guided and influenced by the person he was dependent upon. It is a very common symptom of advanced senility that the senile person falls out with those who were once dear to him.

Prior to 1943, Sam G. Adler was vice president and general merchandise manager of Leopold Adler Company. His salary was $10,000 a year and 1/3 of the profits. Melvin L. Adler, the caveator, was also vice president and merchandise manager and took care of the superintendent's duties. His salary was $8,000 a year and 1/3 of the profits. Prior to 1942, Leopold Adler told Sam many times that he was only keeping the business for his two sons and that his will so provided, and that it gave them an opportunity to purchase the business over a period of 10 years. At this time the relationship between Melvin and his father was most affectionate. Melvin visited his mother and father in their home on an average of two to three times a week. He religiously went on Friday night, which was a Jewish family night. This affectionate relationship continued until 1943. Melvin was a veteran of World War I and World War II. Right after Pearl Harbor, he, after talking it over with his parents and apparently receiving their consent, volunteered for the American Field Ambulance Service and went to Egypt. His mother died in January, 1942, shortly after he sailed. There was a difference in the relationship between Melvin and his father from the time his mother passed away. Olga, who except for the servants lived alone with her father during this period, said: 'Melvin caused Mother's death; Melvin murdered Mother,' until her father believed it. In making these accusations, at the time her father was grief-stricken, she was driving a wedge and prejudicing and influencing her father against Melvin. Within two or three weeks after the death of their mother, when Mr. Adler's children and their families called at his home, a servant came to the door and said, 'Wait a minute. I will have to let you know.' She would come back and either tell them that Mr. Adler was not feeling well or was resting or could not see them that day, and on occasions they were told to come in. It was a change in the informal relationship that had always existed. Olga told members of the family that she had given those instructions to the servants, and said, 'Furthermore, don't come in the future without calling up and getting permission.' Other members of the family were shocked because this was so foreign to what had gone on before. They did not remonstrate with their father about that condition, because they saw that Olga was the controlling factor and knew it would only upset their father. After 1942, when their father's friends of long standing, knowing his advanced age and that he liked company, dropped in to see him at the store, Olga would sit there as if they could not be trusted alone. Sometimes they had intimate business to take up, but she sat there. This gradually weaned away a lot of their father's friends. Up until 1942 Olga had no position with the company, but after her mother's death she antagonized and bullied the department managers and buyers. Shortly after January, 1944, Melvin came back in the store. Olga belittled his work. She told their father that Melvin and Sam were ignoring him in many details of the business. On January 6, 1945, a contract was entered into between Melvin and Sam on the one hand and Mr. Adler and the Adler Company on the other with reference to the assumption by the sons of certain tax liabilities. Melvin refused to sign until he was assured that his contract with the company, which could be terminated on 90 days' notice, would be continued. He and Sam were discharged from the store on July 31, 1945. Olga secured the discharge of Melvin and Sam in order to gain control of the business. Between 1943 and 1945 their father was not making any decisions. Any decisions made were Olga's. For three or four years before his death, physically he was alive, but his mind and soul were hers. The last time Sam saw his father was in March or April, 1946. At that time his physical condition had deteriorated. He was much thinner, much weaker, and barely shuffled along. He was 84 or 85 years old and his mental condition was bad. He would sit and stare. He would break down and weep at times. He had been doing that since he had a cerebral hemorrhage in 1939. He was not acting with independent thoughts. He was virtually a prisoner. Olga sat there and it was apparent that she controlled his thoughts. She had nursed her father from the time he underwent a prostrate gland operation, changed a tube that was inserted just below his navel, and be became wholly dependent upon her. In November, 1946, Sam came home specially to tell his father goodbye before going overseas, but Olga would not permit him to do so. Their father would not have disinherited Melvin and the latter's two boys, if he had been expressing his own wish and will. The codicil disinheriting them was the will of Olga.

John Worth was employed as advertising and sales-promotion manager of the Adler Company from 1933 to 1945. Melvin and Sam actually ran the entire business. Prior to Mrs. Adler's death in 1942, Olga had no active part in the running of the business. After Mrs. Adler's death, she gradually took over more and more, and was constantly at her father's side. She never permitted anybody to see him without her consent. Late in 1943,...