Crews v. Crews, 22165
| Decision Date | 13 November 1963 |
| Docket Number | No. 22165,22165 |
| Citation | 134 S.E.2d 27,219 Ga. 459 |
| Parties | Oliver Donald CREWS v. Lee A. CREWS et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. There being no evidence that any undue influence was operative on the mind of the testatrix at the time the will was executed, the verdict against the will cannot be supported on the ground of undue influence.
2. The opinion testimony of non-expert witnesses, whose opinions were based upon facts from which the legal conclusion that the testatrix did not have the required testamentary capacity could not be drawn, did not overcome the positive testimony of the subscribing witnesses and others who observed her at the moment the will was executed that she did have the necessary testamentary capacity. Thus, the verdict against the will cannot be supported on the ground of mental incapacity.
Lamar Gibson, Waycross, Carroll Russell, Blackshear, for plaintiff in error.
Wm. A. McQueen, Folkston, Leon A. Wilson, II, Waycross, for defendants in error.
Oliver Donald Crews, plaintiff in error, filed his application to probate in solemn form the will of Marziler Crews, under which he was nominated executor and sole devisee of the entire estate. Three brothers and a sister of the testatrix, Lee A. Crews, Bobbie R. Crews, Lewis Crews and Mollie Crews Johns, defendants in error, filed their caveat to the probate alleging undue influence exerted by the propounder upon the testatrix 'at a time when the enfeebled and impaired mind and body of the testatrix was unable and had not the capacity to resist said undue influence.' After full hearing, the Judge of the Court of Ordinary of Charlton County entered judgment refusing probate of the will. The propounder appealed to the Superior Court of Charlton County and, pending trial of the appeal, filed demurrers to the caveat, which were overruled on each and every ground. Upon after the introduction of evidence by both parties, the jury rendered a verdict against the will and judgment was entered accordingly. Upon the overruling of his motions for new trial and judgment notwithstanding the verdict, the propounder sued out this writ of error, assigning error on such rulings and on the trial court's overruling of the propounder's demurrers to the caveat.
Marziler Crews, the testatrix, was one of nine children of Robert L. Crews, who conveyed the old home place to Marziler in 1942 but continued to live there until his death in 1945. Marziler remained a spinster and lived on this property until her death on February 17, 1961, at age sixty-nine. Her nephew Oliver, the propounder of the will, was the illegitimate son of Millie Crews Thomas, a sister of the testatrix who left the farm when Oliver was five years old. Oliver lived with Marziler until he entered military service in 1952. While Oliver was in service he married, and his wife Lucille lived with Marziler before his discharge. After Oliver's return to civilian life, he and Lucille lived on the farm with Marziler until her death, except for brief intervals during which their furniture remained in Marziler's house.
The alleged will was executed on May 9, 1960, in the office of Carroll Russell, the attorney who drew it, and was attested by Russell and two laymen, Doyle Lewis and Richard P. Mays, who were called to the office after the will had been prepared. At trial the testimony of all three attesting witnesses established that the will was signed in their presence by the testatrix and that they signed it as witnesses in her presence and in the presence of each other. As to acknowledgment, all three testified that Russell asked the testatrix whether the instrument was her will and whether she wanted them to witness it, and that she answered in the affirmative but whether verbally or by a nod of the head they could not recall.
Neither Lewis nor Mays was personally acquainted with the testatrix and neither had a sufficient opportunity to form an affirmative opinion as to her mental capacity on this occasion, but both testified that they saw nothing to indicate that she was not of sound mind or that she was not acting of her own volition in executing the will. Neither Mays nor Lewis heard the will read or knew its contents, noticed whether the testatrix was wearing a hearing aid, or remembered whether the testatrix spoke in their presence.
The third attesting witness, Russell, testified that prior to the date of execution, Oliver Crews had come to see him about preparing an agreement between himself and his aunt involving the sale of land. About a week or two later, Oliver returned to the attorney's office accompanied by his wife, Lucille, and the testatrix. According to Russell's testimony, the testatrix discussed the terms of the sale agreement and directed him to prepare a written contract. The testatrix also told him that she desired to make a will and instructed him as to the type it should be. After a discussion of the will's terms and its preparation, the will was read to the testatrix and received her approval. Then Mays and Lewis were called in. Like the other witnesses, Russell was not able to remember the exact conversation which transpired at the execution of the will, almost three years prior to the trial, but his testimony was positive that the testatrix acknowledged the will and made known her desire that the witnesses attest it.
Russell also testified that during the period of from one to two hours that the testatrix was in his office he obserbed her in the discussion of the contract, during which she specifically raised the question of income tax considerations relative thereto, and in the discussion of the will. From this observation he positively concluded that, despite a hearing impediment which necessitated speaking to her in a loud voice, the testatrix was fully aware of what was being discussed and of what she signed, that her mental capacity was normal, and that throughout her stay in his office he observed nothing to indicate coercion against her by either Oliver or his wife during that time or in the past.
Both Oliver and Lucille positively testified that they had never put any pressure on the testatrix to make a will or to make a will in any particular way and that at the time the will was executed she was of sound mind.
Dr. Davis Bennett, Jr., who was qualified as a general practitioner and whose deposition was introduced in evidence by the propounder, testified that he had treated the testatrix for approximately four years prior to her death. She was usually brought to his office about once a month by either Oliver or Lucille Crews. His examinations of her nearest in time to the will's execution on May 9, 1960, occurred on March 21, April 19, June 7, and June 27, 1960. Dr. Bennett testified that the testatrix had suffered from hypertension, arteriosclerotic heart disease, and had been 'a little hard of hearing,' but that in his opinion her illness had not affected her mind in any manner whatever; that her mind was not enfeebled or impaired in any way; that she was capable of making decisions for herself; that her illness had not made her particularly susceptible to the persuasions, coercion, or influence of others; and that she was capable of making a will. He also testified that the testatrix was, in his opinion, cared for excellently and conscientiously and this was one of the reasons she lived as long as she did; that she never showed any symptoms of malnutrition, lack of proper diet, overwork or exhaustion; that she was always in reasonably normal spirits and never showed any sign of fear; and that there was no indication that her medicines were not being properly taken.
Witnesses for the caveators testified that on a number of different occasions the testatrix had stated that she had not paid the consideration of $300 recited in the deed...
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