Deans v. Deans

• Decision Date: 13 January 1931
• Docket Number: 7625.
• Citation: 156 S.E. 691,171 Ga. 664
• Parties: DEANS v. DEANS.
• Court: Georgia Supreme Court

156 S.E. 691

171 Ga. 664

DEANS v. DEANS.

No. 7625.

Supreme Court of Georgia

January 13, 1931

Syllabus by the Court.

Classification in favor of testator's wife and children is proper (Civ Code 1910, § 3832).

The first sixteen grounds of the amendment to the motion for a new trial are based upon instructions actually delivered by the court; and the seventeenth, eighteenth, nineteenth twentieth, twenty-first, twenty-second, twenty-third twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh twenty-eighth, twenty-ninth, and thirtieth grounds assign error upon the refusal of the court to give certain written requests timely presented.

(a) A classification in favor of the wife and children of a testator, or his child, if he has no wife, or of his wife, if he has no children, is reasonable, and within the inherent prerogative of the General Assembly.

Burden of proof required to set aside will held inapplicable to will excluding wife and child which may be set aside on "slightest" proof of incapacity or undue influence (Civ. Code 1910, § 3832).

In providing a measure in favor of the wife and children of the testator, or of his child or children, if he has no wife, or of his wife, if he has no children, the rules of evidence applicable to the class of wills segregated and set apart by section 3832, Civ. Code 1910, are different, as to the nature and quantum of proof, from those recognized in the probate of wills which are unaffected by the provisions of the Code section named.

Son contesting father's will, excluding him, as procured by fraud, was properly permitted to testify that he was recommended for Rhodes scholarship, and error, if any, in permitting definition of Rhodes scholarship, was immaterial; in proceeding to probate will contested for fraud and undue influence, testimony that testator's wife remarried after obtaining divorce was properly excluded as irrelevant; admission of evidence objected to without stating reasons for objecting presented nothing for review; question of witness whether contestant of will called on testator during his illness held properly excluded as leading; evidence of depreciation in value of property since taken out of hands of executor offered to impeach various witnesses as group held properly excluded.

The assignments of error based upon the rulings of the court in the admission and rejection of testimony afford no cause for the grant of a new trial.

The evidence was sufficient to support the verdict, and the court did not err in overruling the motion for a new trial.

Error from Superior Court, Fulton County; E E. Pomeroy, Judge.

Application by W. O. Deans for probate of the will of R. E. Deans, deceased, in which Frank Deans filed a caveat. Judgment for caveator, motion for new trial by the propounder was overruled, and the propounder brings error.

Affirmed.

Burden of proof required to set aside will held inapplicable to will excluding wife and child, which may be set aside on "slightest" proof of incapacity. Civ.Code 1910, § 3832.

W. O. Deans, as nominated executor, filed for probate in the court of ordinary of Fulton county an instrument purporting to be the last will and testament of R. E. Deans. A caveat was filed by Frank Deans, a son of the testator, on various grounds. The ordinary found in favor of the caveator, and an appeal to the superior court was entered. Verdict and judgment were rendered, decreeing the instrument not to be the last will and testament of R. E. Deans. A motion for new trial was made by the propounder, on the three general grounds; and later an amendment was filed setting up thirty-nine additional grounds. The court overruled the motion, and the propounder excepted. The special grounds of the motion are:

(1) "The court erred in charging the jury as follows: 'The caveator, Frank Deans, contends that undue influence was used upon R.

E. Deans, so as to overpower his mind, that fraud was practiced upon him, that R. E. Deans was affected by aberration of intellect, that said will was the result of collusion on part of the beneficiaries, that said will was the result of unfair dealing on the part of the beneficiaries toward the testator, and that therefore for these reasons, or some of them, the will that is presented to you--the alleged will--is not the will of R. E. Deans.' Said charge was error, because the same was unsupported by the evidence, and it was error to submit to the jury the question as to whether Deans was afflicted by an aberration of intellect, there being no evidence to that effect. It was error to submit to the jury the question as to whether the will was the result of collusion on the part of the beneficiaries, there being no evidence to that effect. It was error to submit to the jury that the will was the result of unfair dealing on part of the beneficiaries toward the testator, there being no evidence to that effect."

(2) "The court erred in charging the jury as follows: 'I instruct you that relative to the objection of undue influence, collusion or fraud, or unfair dealing, the law does not require that all the legatees should have participated in such undue influence or collusion, or fraud or unfair dealing. It is sufficient if any of said legatees so acted.' Said portion of the charge was error, because there was no evidence of undue influence, collusion, fraud or unfair dealing, and there was no evidence that all of the legatees participated in any such, or that any of the legatees participated in any such."

(3) "The court erred in charging the jury as follows: 'I instruct you that aberration of intellect is an abnormality or deviation from normalcy. It does not mean general insanity, but any deviation or wandering of the mind present at the time of the execution of the will that prevents it from being a decided and rational disposition of property.' Said extract from the charge just quoted is error, because, first, the same is unsupported by any evidence; because, secondly, the definition of aberration of intellect is incorrectly given in the charge; because, third, aberration of intellect, in the sense of the Code section which was being charged, does not mean an abnormality or deviation from normal, nor does same mean any deviation or wandering of the mind present at the time of the execution of the will, that prevents it from being a decided and rational disposition of property; but the said aberration of intellect in said Code section has reference to the general definitions of such mental capacity as will enable one to make a will found in the Code, and found in the general rules of law in Georgia; the same merely meaning that to have testamentary capacity one must not be insane, and must have enough capacity to enable him to have a decided and rational desire as to the disposition of his property, and that eccentricity of habit or thought does not deprive a person of the power of making a testament, and that old age and the weakness resulting therefrom does not constitute testamentary incapacity; and, fourth, because the Court erred in saying that any deviation from normal constituted aberration of intellect, and movant says that the same, as defined by the Court, is too slight to constitute testamentary incapacity; and, fifth, the Court erred in saying that any deviation from normalcy constituted aberration of intellect in the sense of the Code section; whereas, the law required a much greater degree of mental incapacity than mere deviation from normalcy, which is a confusing and uncertain standard, and which does not correctly set forth the law."

(4) "The court erred in charging the jury as follows: 'One of the grounds of the caveat is generally referred to as undue influence. The propounder denies that there was any undue influence. The allegation of undue influence is based upon a section of our law, which provides that the very nature of a will requires that it should be freely and voluntarily executed, hence anything that destroys this freedom of volition invalidates the will, such as undue influence, fraudulent practices upon testator's fears or affections, sympathies, or duress, whereby the will of another is substituted for the wishes of the testator.' Movant says that said extract from the charge was error, because, first there was no evidence sufficient to submit undue influence or fraudulent practices upon testator's fears or affections to the jury."

(5) "The court erred in charging the jury as follows: 'Importunity such as the testator has not the courage to resist, command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these if true, and if carried to a degree in which the free play of the testator's wishes are overborne, would constitute undue influence, though no force is used or threatened.' The above extract from the charge was error, because there was no evidence of such undue influence as was referred to therein by the court."

(6) "The court erred in charging the jury as follows, to wit: 'Undue influence may vitiate a will, although used, if that is done by others than the beneficiaries, although the beneficiaries were ignorant of it.' Movant excepts to this charge, and says that the same contains an incorrect proposition of law, and that if undue influence is used by others than the beneficiaries and not for their benefit, or with their knowledge or consent, that it would not invalidate a will."

(7) "The court erred in charging the jury as follows, to wit: 'If there was influence, as alleged to overcome the free agency of the testator, and overmaster his wishes, it was undue influence, and if found sufficient to destroy the testator's free agency in the making of a will, it would be undue, even thoughslight.' ...