Cato v. Hunt

• Decision Date: 31 October 1900
• Citation: 37 S.E. 183,112 Ga. 139
• Parties: CATO et al. v. HUNT.
• Court: Georgia Supreme Court

37 S.E. 183

112 Ga. 139

CATO et al. v. HUNT.

Supreme Court of Georgia

October 31, 1900

Syllabus by the Court.

1. Where a deed was attacked on the ground that the grantor had not capacity to contract, and that the deed was procured by undue influence, it was error to refuse to allow the grantee the grantor being dead, to testify that the grantor had lived in her home for several months, and she had seen and talked with him daily, and that from these facts it was her opinion that he was of sound mind, and mentally capable of making a contract. To give an opinion based on these facts is not such testimony, as to transactions or communications had with the deceased, as should be excluded, under section 5269 of the Civil Code.

2. Evidence that the grantor had, prior to the execution of the deed, frequently expressed an intention to make an entirely different disposition of his property, promising to give it to the person named in his will as sole legatee, was relevant and material in determining whether undue influence was brought to bear to induce the execution of the deed.

3. Evidence that such sole legatee had performed for the grantor valuable services, and that the grantor had agreed, as compensation for those services, to leave all of his property to such legatee, and evidence touching the amount and value of the services performed, was relevant and admissible on the question of undue influence.

4. There was no material error in any of the other rulings of which complaint was made, and the case is reversed solely because of the error dealt with in the first division of this syllabus.

Error from superior court, Floyd county; W. M. Henry, Judge.

Suit by Ellen M. Hunt against William Cato and Laura H. Cato. Verdict for plaintiff. From an order denying a new trial, defendants bring error. Reversed.

Fouché & Fouché, for plaintiffs in error.

Neel & Neel, for defendant in error.

SIMMONS C.J.

Thomas Cato died leaving a will by which he gave all of his property to Ellen M. Hunt, and appointed her his executrix. She qualified as executrix, and as such filed an equitable petition against William Cato and his wife, Laura H. Cato seeking to have set aside a deed to Laura H. Cato made by Thomas Cato a few days before his death. She alleged that, on account of imbecility and weakness of mind, Thomas Cato was at the time of the signing of the instrument relied upon by the defendants as conveying title to Laura H. Cato, incapable of making a contract. She further alleged that the grantee had induced the making of the instrument by fraud and undue influence. The defendants denied the allegations as to mental incapacity, fraud, and undue influence. The case was tried, and the jury returned a verdict for the plaintiff, finding that the deed to Laura H. Cato should be canceled. The defendants made a motion for a new trial, which was overruled by the court. The movants excepted.

1. On the trial of the case, Laura H. Cato was offered as a witness in her own behalf to prove that Thomas Cato had lived in her house for several months prior to the making of the deed to her; that she had seen him daily, and had frequent conversations with him; and that he was, in her opinion fully capable of making a contract. This testimony was objected to by the counsel for the plaintiff on the ground that, Thomas Cato being dead, Mrs. Cato was incompetent as a witness to testify to any transactions or communications had with him. The objection was sustained, and the evidence rejected. This ruling was made one of the grounds of the motion for new trial. We think the court erred in rejecting this evidence. It was not offered to prove any personal transaction or communication with the deceased grantor, but to show his mental condition. It was simply the opinion of the witness as to his sanity and mental capacity, based upon the facts recited. Mrs. Cato does not appear to have been offered to show the terms or the execution of the deed, or to testify as to what influence was brought to bear upon the deceased by her. Her evidence was simply as to her opportunity for observing the deceased, and as to the impression made upon her by his conduct and conversation. Had the grantor been in life, and brought this action to set aside the deed on the ground of fraud and undue influence, he could not have denied her statement as to the opinion she had formed as to his mental capacity. This court, in construing the first exception given in section 5269 of the Civil Code as to the meaning of the terms "transactions or communications," in the case of Chamblee v. Pirkle, 101 Ga. 792, 29 S.E. 21, said: "The true intent and meaning of the exceptions to the section above cited is to exclude testimony of any party as to matters occurring or happening directly with the deceased party, which he, if alive, could deny or...