Bailey v. Bailey

• Decision Date: 18 November 1948
• Docket Number: 16427.
• Citation: 50 S.E.2d 617,204 Ga. 556
• Parties: BAILEY et al. v. BAILEY.
• Court: Georgia Supreme Court

50 S.E.2d 617

204 Ga. 556

BAILEY et al. v. BAILEY.

No. 16427.

Supreme Court of Georgia

November 18, 1948

Syllabus by the Court.

1. The evidence offered by the caveators to show mental incapacity of the testator was insufficient to overcome the admitted prima facie case in favor of testamentary capacity.

2. The evidence of the caveators on the question of whether the paper propounded for probate was the result of undue influence exercised over the mind of the testator failed to present an issue for the jury. It showed no more than a mere opportunity to exercise undue influence, which is not sufficient.

3. Since the evidence was insufficient to show either mental incapacity or undue influence and no legal verdict could have been rendered other than one in favor of probating the will it is not necessary to rule on the special assignments of error.

William D. Bailey died on November 27, 1947, leaving a will which was executed on March 23, 1946, and which was offered for probate in solemn form by the named executor Eugene A. Bailey. By the will the testator bequeathed and devised his home and certain items of personal property to his daughter, Annie B. Wood. His one-half interest in a mercantile business was devised to his son, Eugene A. Bailey. He bequeathed the sum of $2000 to his daughter, Mamie B Bagley, stating in that item, 'this in addition to cash advances already given toward her support to be her full share of my estate.' With reference to the other child of the testator, it was stated in the will: 'No provision is made in this will for my son, William F. Bailey, for the reason that I have heretofore made ample contributions to my said son and which shall constitute his full share of my estate.' The residue of the estate, was bequeathed and devised to Eugene A. Bailey and Annie B. Wood. William F. Bailey and Mamie B. Bagley filed a caveat to the petition for probate on the grounds of (1) lack of testamentary capacity, and (2) undue influence, alleged to have been exerted upon the testator by Eugene A. Bailey and Annie B. Wood. Judgment in the court of ordinary was in favor of the will. After appeal to the superior court, the caveators were allowed to file, subject to demurrer, the following amendment to the caveat: 'They admit that William D. Bailey, the deceased, signed said alleged will at a time when he apparently had sufficient mentality to make a will, and they further admit that the witnesses to said will signed the same in his presence, and admit a prima facie case in the propounder of said will.' After the introduction of evidence, the material portions of which are set out in the opinion, the jury returned a verdict in favor of the propounder. The caveators filed a motion for new trial on the general grounds, and by amendment added a number of special grounds. The court overruled the motion, and the caveators excepted.

E. W. Maynard and Carlton Mobley, both of Macon, and H. B. Williams, of Americus, for plaintiffs in error.

Dykes & Dykes, of Americus, for defendant in error.

CANDLER, Justice (after stating the foregoing facts).

1. By the admission of a prima facie case in favor of the propounder, the caveators assumed the burden of proving that the paper sought to be propounded was not entitled to probate because of mental incapacity of the testator or undue influence exercised over the mind of the testator by the propounder and Annie B. Wood. Our first inquiry must therefore be directed to the evidence introduced by the caveators to determine whether they have carried the burden of establishing the invalidity of the will on these grounds. First, on the issue of mental capacity, the evidence most favorable to the contentions of the caveators shows that the testator, at the time he executed the will, was about 86 years of age, and in very feeble health. The substance of the evidence was that he was 'feeble,' 'childish,' 'forgetful,' 'unable to remember events or persons,' and generally affilcted with the infirmities that accompany very old age. The fact that he was at times unable to recognize those who were closely associated with him is consistent with the testimony that his eyesight was very bad because of cataracts. The caveator, Mamie B. Bagley, a nonexpert witness, testified that she did not 'think that he had any grasp of the condition of his property about its disposition or how it was being handled.' This testimony, however, was not based on such facts and circumstances as would authorize such a conclusion. There is nothing in the evidence that showed more than that the physical infirmities and weakness of intellect resulted from old age; however, this does not constitute mental incapacity to make a will, unless such weakness actually amounts to imbecility. Code, § 113-205. The test of mental capacity to make a will is whether the testator had such mental capacity at the time the will was actually executed to have a decided and rational desire as to the disposition of his property. Terry v. Buffington, 11 Ga. 337, 56 Am.Dec. 423; Brown v. Kendrick, 163 Ga. 149, 168, 135 S.E. 721; Hillyer v. Ellis, 171 Ga. 300, 155 S.E. 180; Fehn v. Shaw, 199 Ga. 747, 754, 35 S.E.2d 253; Spivey v. Spivey, 202 Ga. 644, 652, 44 S.E.2d 224. None of the witnesses for the caveators testified that they saw the testator at the time, or even on the day, when the will was executed. On this question the evidence introduced by the caveators totally failed to present an issue for the jury.

2. We next consider the evidence to discern what facts, if any were shown that would authorize the jury to find that the will in question was the result of undue influence exercised over the mind of the testator by Eugene A. Bailey and Annie B. Wood, as alleged in the caveat. In so doing we must keep in mind the applicable rule of law that, to be sufficient to invalidate a will on the ground of undue influence, the evidence must show that such influence amounted to fear, force, overpersuasion, or coercion, to the extent of destroying the free agency and will power of the testator, and in effect made the will the mental offspring of another. Galloway v. Hogg, 167 Ga. 502, 524, 146 S.E. 156; Trust Company of Georgia v. Ivey, 178 Ga. 629, 641, 173 S.E. 648. And...