Carter v. Dixon

• Decision Date: 30 September 1882
• Parties: Carter, next friend, et al. vs. Dixon et al.
• Court: Georgia Supreme Court

69 Ga. 82

Carter, next friend, et al. vs. Dixon et al.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1882.

Wills. Evidence. Practice in Superior Court. Practice in Supreme Court. Before Judge Willis. Webster Superior Court. April Term, 1882.

J. J. Dixon and G. W. Warren, as executors of J. H. Carter, deceased, propounded his will for probate in solemn form. After providing for the payment of his debts, the will contained the following provisions: Item 2, directed certain described land to be sold by his executors. Item 3 required the sale of testator's personalty by the executors, except certain bedding, and that the proceeds be applied first to putting a wire paling around the graves of himself and wife, and the balance be divided among testator's children named in the will, certain grandchildren representing their deceased grand-parent. Item

5, $150.00 was left to two of testator's grand-sons. Item

6, John J. Dixon and G. W. Warren, who were sons-in-law of testator, were appointed trustees for the five minor grand-children of testator, the children of his daughter-in-law, Mrs. Carter. The trustees were to hold the funds of these grand-children until they arrived at the age of twenty-one, unless their necessities should sooner require payment to them, and the trustees were to be the judges of such necessity. Item 7, a watch was bequeathed. Item 8, Dixon and Warren were appointed executors.

Mrs. Emma Carter, on behalf of her five minor children, she being a widow of a deceased son of testator, Mrs. Noel, a daughter of testator, her husband joining with her, and Mrs. Cutts, a grand-daughter of testator, her husband also joining with her, filed a caveat to the will. The grounds of the caveat were numerous, but may be reduced to four: (1.) Imbecility of the testator fromextreme age and decrepitude. (2.) Undue influence exercised by J. J. Dixon, executor, son in-law and scrivener of the will, in falsely representing caveator as the enemies of testator, and, by false and fraudulent representations, prejudicing testator\'s mind. (3.) Mental delusion and hallucination produced by false representations by Dixon as to caveators, under the influence of which the will was made. (4.) That the will was unreasonable, unequal, inequitable and unjust.

The evidence was very voluminous. The propounders proved the execution of the will, and introduced evidence to show that testator's mind was sound, firm and strong, "and that he was free from the influence of others or from fraudulent practices. Caveators introduced a number of witnesses to show that testator was aged and infirm, both in body and mind; that he was easily troubled by small matters, and was morbidly incensed against the caveators, especially Mrs. Carter, on account of certain family difficulties, and certain reports which had come to his ears concerning their statements and conduct; that testator had once or twice named Dixon as his authority for certain of these unkind reports; that, several years before his death, testator made deeds dividing his lands among his children and grandchildren; that possession of the lands was delivered to the donees, but the deeds were held by the testator until his death, when all of them were delivered except those to Mrs. Carter's children and to the mother of Mrs. Cutts, which were burned; that Dixon wrote the will, was present in the house at the time of its execution, lived near the testator prior to the making of the will and with him afterwards until his death, and was frequently with him; that he and Mrs. Carter were not on speaking terms for some time before the will was made. The will devised the land which would have passed under the destroyed deed. It was not disputed that Mrs. Carter and her children lived on the land, but the extent of the possession was contested.

The jury found in favor of the propounders. The caveators moved for a new trial, on the following among other grounds:

(1,) (2.) Because the verdict was contrary to law and evidence.

(3.) Because the court charged as follows: "You have been empanelled to try that case, and say, from the testimony, what the truth is on that issue—will or no will. Is this paper which is offered for probate the will of Josiah H. Carter? That is the issue, and that is the only issue you are called upon to try and pass upon. You are not there to say whether the paper offered for probate is a just or an unjust will, whether if you had been placed in similar circumstances, you would have made a similar will. That is not the issue before you. There is but one issue, and that is, is this the will of Josiah H. Carter? A jury has no right to set aside a will because, in their opinion, it is unjust. The only question is, is it his will? If it is his will, he had a right to make it under the law That is the only issue before you now."

(4.) Because the court charged as follows "Influence, to be undue, must amount to moral coercion, must destroy the free agency of the testator and constrain him to do what is against his will, but what he is unable to resist. In other words, it must be the will of the party exercising the influence over him, and not his will In this case, it is claimed that this is not the will of Josiah Carter, but the will of one Dixon; that Dixon had such influence over the old man, that it was impossible for him to resist any wish or desire of Mr. Dixon; that he exercised that influence over him, and made him make a will that he did not wish to make. If you believe from the testimony that Dixon did exercise such influence over the old man that it was impossible lor him to resist his wish or entreaties, and that he made such a will as Dixon wanted, and not such as he wanted, and that he was compelled to make that will against his wishes, then the will would be Dixon's will and not his."

(5.) Because the charge failed to state all the issues involved in the case, and the law applicable, to said issues; and because, as applicable to the facts, it was illegal, taken as a whole.

(6.) Because the court refused the following request: "Although a person has a right, and it is lawful for him to move a testator to make him his executor or give him his goods, even when the testator is a person of weak judgment and easy to be persuaded, and the legacy of the propounder or his near relatives considerable, yet, if in such a case a person does so move a testator, a very strong presumption arises that the moving was not right and lawful—a presumption only to be rebutted by that person's bringing forward something sufficient to show the will such as a man average mind, morals and family love might be willing to make. If you believe that the testator was an aged and feeble man, and that he had previously had testamentary intentions of distributing his property equally, then you can look to the nature of the will to ascertain its reasonableness. The reasonableness or unreasonableness of the will may throw light on the question of imbecility. If you think from the evidence that the: weakness of J. H. Carter's mind amounted to imbecility, then the will cannot be set up."

(7,) Because the court refused the following request: " Influence is undue when it is shown that another person has acquired such dominion and influence over the testator's mind as to prevent the exercise of his discretion in disposing of his property by will. A will made by the testator under the influence of such dominion is void. There are some relations in life where a...