Cook v. Huff

• Decision Date: 16 July 2001
• Docket Number: No. S01A0756.,S01A0756.
• Citation: 274 Ga. 186,552 S.E.2d 83
• Parties: COOK v. HUFF et al.
• Court: Georgia Supreme Court

552 S.E.2d 83

274 Ga. 186

COOK v. HUFF et al.

No. S01A0756.

Supreme Court of Georgia.

July 16, 2001.

Reconsideration Denied September 17, 2001.

Howard P. Wallace, Griffin, for appellant.

Shepherd & Johnston, Griffin, for appellees.

CARLEY, Justice.

In February of 1998, Milton Cook suffered a stroke and was unable to return home until July. In August, he executed a new will and died several months later. The will named his widow, Kathleen Cook (Propounder), as executrix, and she filed the document for probate. Mr. Cook and Propounder were married for 53 years and had four children. His three children by a former marriage (Caveators) contested the will on the ground of Propounder's alleged undue influence. The probate court admitted the will to probate, and Caveators appealed. The case was tried before a jury which returned a verdict for Caveators. Propounder appeals from the judgment entered on the jury's verdict.

1. Propounder urges that the trial court erred in denying her motions for directed verdict, judgment n.o.v. and new trial.

A trial court may grant a motion for new trial if, in the exercise of its discretion, it finds that a jury's verdict was against the weight of the evidence. OCGA § 5-5-21. However, when a trial court denies such a motion, the appellate court does not have the discretion to grant a new trial on that ground. "[W]e can only review the evidence to determine if there is any evidence to support the verdict. [Cit.]" Drake v. State, 241 Ga. 583, 585(1), 247 S.E.2d 57 (1978). The standard of appellate review of the denial of a motion for new trial on the general grounds is essentially the same as that applicable to the denial of a motion for directed verdict or judgment n.o.v. See Womack v. St. Joseph's Hosp., 131 Ga.App. 63-64(1), (2), 205 S.E.2d 72 (1974), overruled on other grounds, Herr v. Withers, 237 Ga.App. 420, 422, 515 S.E.2d 174 (1999). The appellate courts "can only set a verdict aside, on evidentiary grounds, as being contrary to law in that it lacks any evidence by which it could be supported." Gledhill v. Brown, 44 Ga.App. 670, 672(1), 162 S.E. 824 (1932). Accordingly, we must decide whether the evidence, when construed most favorably for Caveators, demanded a finding that the will was not the product of Propounder's undue influence.

Evidence showing only that she had the opportunity to influence her husband and that she receives a substantial bequest under the terms of his will is not sufficient to show that she exercised undue influence over him. Harvey v. Sullivan, 272 Ga. 392, 394(4), 529 S.E.2d 889 (2000). However, the question of whether a will is the product of undue influence is generally for the fact-finder. Mathis v. Hammond, 268 Ga. 158, 160(3), 486 S.E.2d 356 (1997). Accordingly, we would reverse the judgment entered on the jury verdict only if this case presents an exception to that general rule. Undue influence "may take many forms and may operate through diverse channels. [Cit.]" Dyer v. Souther, 272 Ga. 263, 264(2), 528 S.E.2d 242 (2000). Moreover, its existence and effect can rarely be shown other than by circumstantial evidence. Skelton v. Skelton, 251 Ga. 631, 634(5), 308 S.E.2d 838 (1983). Therefore, when a will is contested on the ground of undue influence, the attack may be supported by a wide range of testimony. Dyer v. Souther, supra at 264(2), 528 S.E.2d 242. Here, there was evidence of pre-existing animosity between Caveators and their stepmother. Cox v. Rutledge, 18 Ga. 294 (1855). In determining whether she exercised undue influence,

so as to substitute her will for that of her husband in his last will and testament, all of the circumstances including the conduct and demeanor of the parties with respect to each other, their comparative ages and mental capacity, and especially any physical and mental infirmity due to advanced age of the husband, may be taken into consideration.

Trust Co. of Ga. v. Ivey, 178 Ga. 629, 641-642(5), 173 S.E. 648 (1934). "`[T]he amount of influence necessary to dominate a mind impaired by age or disease may be decidedly less than that required to control a strong mind. (Cits.)' [Cits.]" Skelton v. Skelton, supra at 634(5), 308 S.E.2d 838. Mr. Cook was elderly at the time he executed the contested will, he had recently suffered a debilitating stroke and was under medication. Roberts v. Baker, 265 Ga. 902, 463 S.E.2d 694 (1995). Thus, a lesser degree of influence would be required to overcome his free will. Bowman v. Bowman, 205 Ga. 796, 797(2), 55 S.E.2d 298 (1949). There was evidence that Propounder attempted to alienate Mr. Cook from his other family members, especially Caveators, and that she actively encouraged him to execute the new will. Penniston v. Kerrigan, 159 Ga. 345, 349-351, 125 S.E. 795 (1924). In fact, she arranged the meeting with the drafting attorney and was present at the execution of the document. Roberts v. Baker, supra. The terms of Mr. Cook's August 1998 will were inconsistent with his long-standing expression of the testamentary intent to leave equal shares to his wife and children. The new will's provisions were more generous to Propounder and less beneficial to Caveators than those of his prior will. Roberts v. Baker, supra. "`[I]t is always proper to inquire whether the provisions of the will are just and reasonable, and in accord with the state of the [testator's] "family relations or the contrary." [Cits.]'" Knox v. Knox, 213 Ga. 677, 681(3), 101 S.E.2d 89 (1957). Although this evidence did not demand a finding that the will was the product of Propounder's undue influence, it was sufficient to authorize the submission of that question to the jury. Dyer v. Souther, supra at 264(2), 528 S.E.2d 242; Roberts v. Baker, supra at 904(2), 463 S.E.2d 694; Skelton v. Skelton, supra at 633(5), 308 S.E.2d 838. Because the evidence did not demand a contrary verdict to that returned by the jury's verdict in favor of Caveators, the trial court correctly denied Propounder's motions for directed verdict, judgment n.o.v. and new trial.

2. Propounder enumerates as error the denial of her motion in limine seeking to exclude evidence of other transactions either conducted by Mr. Cook personally or involving him. She contends that the evidence was not relevant. As previously noted, however, the jury is permitted to consider a broad range of circumstantial evidence in connection with the trial of a will contest involving the allegation of undue influence. Dyer v. Souther, supra at 264(2), 528 S.E.2d 242.

"[I]t is proper on an issue of this kind to consider the testator's dealings and associations with the beneficiary of his bounty; his habits, motives, feelings; his strength or weakness of character; the reasonableness or unreasonableness of the will; his mental and physical condition at the time the will was made; his manner and conduct; and generally every fact which will throw any light on the issue raised by the charge of undue influence. [Cit.]" [Cit.]

Stephens v. Brady, 209 Ga. 428, 433(2), 73 S.E.2d 182 (1952). Considering the breadth of evidence admissible in support of a claim of undue influence, the trial court properly denied Propounder's motion in limine.

3. Over a hearsay objection, one of Caveators was allowed to testify that, when she and her husband arrived at the funeral home, she learned that "[Propounder] had told them to close the casket in our face." Propounder's objection should have been sustained, as this testimony is inadmissible hearsay. While the witness might be allowed to testify that she herself overheard Propounder direct that the coffin be closed, there is no hearsay exception which would permit the witness to testify that she spoke with some other unidentified individual who attributed that order to Propounder. To authorize a reversal, however, the evidentiary ruling must be harmful as well as erroneous. Considering the quantum of the admissible evidence regarding the bad feelings which existed between the parties, (see Cox v. Rutledge, supra), the passing reference to the closed casket had no significant prejudicial impact on Propounder. See Busby v. State, 174 Ga.App. 536, 538(1), 330 S.E.2d 765 (1985). Thus, even though the ruling on the hearsay objection was erroneous, the error was harmless.

4. Propounder enumerates as error the trial court's refusal to allow her to call Mr. Cook's stockbroker as a rebuttal witness because his name did not appear on the witness list in the pre-trial order. The pre-trial order controls "unless modified at the trial to prevent manifest injustice." OCGA § 9-11-16(b). A trial court has some discretion in the matter, and its decision to exclude a rebuttal witness will be affirmed unless that discretion is abused. See Minnick v. Lee, 174 Ga.App. 182, 184(1), 329 S.E.2d 548 (1985). Propounder did not attempt to show the trial court that, under the circumstances, its failure to allow the stockbroker to testify would result in a manifest injustice. See Allstate Ins. Co. v. Reynolds, 138 Ga.App. 582, 588(6), 227 S.E.2d 77 (1976). Compare Minnick v. Lee, supra at 184(1), 329 S.E.2d 548. Instead, her attorney informed the trial court at the outset that, if Caveators' counsel was "going to object, I'll send [the unlisted witness] on back." When Caveators did raise an objection and the trial court indicated that it would not allow the stockbroker to testify, Propounder's lawyer acquiesced and stated "[w]ell, I'll send him on his way then." Under these circumstances, we find no abuse of the trial court's discretion. Star Gas v. Robinson, 225 Ga.App. 594, 596(3), 484 S.E.2d 266 (1997), reversed on other grounds, 269 Ga. 102, 498 S.E.2d 524 (1998).

5. The denial of Propounder's motion for summary judgment is moot. Kicklighter v. Woodward, 267 Ga. 157, 162(5), 476 S.E.2d 248 (1996). The sufficiency of the evidence to authorize a finding of undue influence must be determined on the basis of that submitted to and...