Akin v. Patton

• Decision Date: 11 September 1975
• Docket Number: No. 30050,30050
• Citation: 218 S.E.2d 802,235 Ga. 51
• Parties: Dora Smith AKIN et al. v. Vera S. PATTON.
• Court: Georgia Supreme Court

Page 802

218 S.E.2d 802

235 Ga. 51

Dora Smith AKIN et al. v. Vera S. PATTON.

No. 30050.

Supreme Court of Georgia.

Sept. 11, 1975.

Palmour, Palmour & Lawson, James E. Palmour, III, Gainesville, for appellants.

Mackay & Elliott, James A. Mackay, Decatur, for appellee.

INGRAM, Justice.

Vera Patton, the appellee, filed an application in the Court of Ordinary (now Probate Court) of DeKalb County to probate the will of Nora A Smith in solemn form. Appellants filed a caveat and evidence was presented. The alleged will was admitted to probate and appellants filed an appeal to the Superior Court of DeKalb County where the issues were tried de novo to a jury and a verdict was rendered in favor of the appellee. We affirm the judgment of the trial court.

The appellants' first enumeration of error is that at the time the jurors were being qualified they were asked by the trial judge whether they were related by blood or marriage to appellants' counsel in the case. The contention is that this was prejudicial to appellants as it implied that the attorney had a pecuniary interest in the case when there was no showing he was employed on a contingent fee basis. If this were error, it fell equally on both sides as the trial judge also qualified the jurors as to any relationship with appellee's counsel. Under Code Ann. § 59-705 prospective jurors may be examined 'touching any matter or thing which would illustrate any interest of the juror in the cause, including . . . the relationship or acquaintance of the juror with the parties or counsel therefor.' See, also, Glover v. Maddox, 100 Ga.App. 262, 265, 111 S.E.2d 164. This enumeration of error is without merit.

Appellants' second enumeration of error concerns the preliminary instructions of the trial judge to the jury at the beginning of the trial. Appellants assert that these general orientation instructions amounted to an erroneous 'charge of law' and were misleading and confusing to the jury. The instructions of the trial judge identified the testatrix, propounder and caveators of the will and explained which side had the burden of proof so the jury would understand the order in which opening statements and evidence were to be presented by the parties. The trial judge overruled appellants' objection to these instructions and refused a subsequent request to instruct the jury to ignore them. Appellants contend that these general instructions not only were misleading and confusing to the jury but also expressed or intimated the judge's opinion on some of the merits of the case in violation of Code Ann. § 81-1104.

Neither side has cited any authority to indicate whether or not the trial judge may give the jury preliminary instructions and an outline of the case. We believe it is often helpful for the trial judge to give some general instructions to the jury at the beginning of the trial to orient them to the trial procedures and nature of the case. The danger encountered in giving detailed instructions at the beginning of the trial is that inadvertently the trial judge may misstate the contentions of the parties or may suggest thoughts which might intrude upon the jury's prerogative to weigh all the evidence. Thus, it is important that any preliminary instructions given by the trial judge avoid misstating the contentions of the parties and the issues in the case. Otherwise, the trial judge may unwittingly express some opinion or influence the jury into giving greater weight to one witness over another. Of special concern in this case is the judge's statement that, 'the basic issue in the case for your determination is whether or not the will was valid when executed by Nora A. Smith when she made the will.' The trial judge later asserted that the propounders had the initial burden of proof to 'make out a prima facie case by showing the factum of the will and that at the time of its execution the testatrix apparently had sufficient mental capacity to make it and so acted freely and voluntarily. When this is done, the burden of proof shifts to the caveators, the objectors of the will.'

These instructions were generally correct but did not relate in detail the full contentions of the appellants. For example, some of appellants' contentions were that the purported will was a forgery, that it was made as a result of undue influence, mistake and the like. It is error to give in charge to the jury at the close of the case a misstatement of the contentions of a party. See Nassau v. Sheffield, 211 Ga. 66, 84 S.E.2d 4 (1954); Baker v. Moore, 182 Ga. 131, 184 S.E. 729 (1935); Mitchell v. Gay, 111 Ga.App. 867, 143 S.E.2d 568 (1965). It is also error to misstate the contentions of the parties before any evidence is heard. When this occurs, there is a real danger of prejudicing the jury to one side or the other as they listen to the case develop from the testimony. However, we do not believe that happened in this case. The basic issue was the validity of the will and the various grounds of the caveat filed by appellants necessarily dealt with this issue. We also note that each of the contentions of the parties was fully charged at the conclusion of the evidence and the trial judge cautioned the jury that nothing the trial judge did or said during the trial was intended to intimate, hint or suggest which of the parties should prevail in the case. Therefore, we conclude that the preliminary instructions given by the trial judge were not misleading, confusing or expressive of an opinion so as to require a reversal of the case.

Enumerations of error 3 and 4 deal with the trial judge's refusal to allow a broad question about the testatrix' condition prior to her death which occurred approximately three years after she executed the purported will. The trial judge, upon sustaining the objection to this question, stated that 'knowledge of the testatrix is relevant up to the time of execution of the will in evidence.' Appellants contend that relevant evidence was excluded by this ruling of the trial court. Relevant evidence about the testatrix' state of mind at the time of the execution of the will includes...