Dennis v. Weekes

• Decision Date: 31 January 1874
• Citation: 51 Ga. 25
• Parties: William T. Dennis and wife, plaintiffs in error. v. William J. Weekes, defendant in error.
• Court: Georgia Supreme Court

51 Ga. 25

William T. Dennis and wife, plaintiffs in error. v. William J. Weekes, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1874.)

Wills. Witness. Opinions. Evidence. Admissions. Administrators and executors. Declarations. New trial. Before judge James Johnson. TaIbot Superior Court. September Term, 1873.

Virginia Dennis, wife of William T. Dennis, petitioned the Court of Ordinary of Talbot county, setting forth that she was the daughter of William Stallings, deceased; that William J. Weekes produced before said court, in December, 1869, an instrument in writing purporting to be the last will and testament of said Stallings, which paper was admitted to record in common form; that said Weekes claims to be the executor under said instrument, and has taken possession of the estate. Prays that an order may issue requiring said Weekes to probate the same in solemn form.

Upon the usual proceedings being had to bring all the parties *at interest before the court, Virginia Dennis and her husband filed the following caveat:

1st. That the paper propounded for probate by William J. Weekes, as the last will of William Stallings, is not his will, because when he signed said paper he was incompetent, from insanity and mental imbecility, to make a will.

2d. That he did not make said paper as his last will freely and voluntarily, but made the same in consequence of the undue influence and constraint which the said Weekes exercised over him.

3d. That the said Weekes did, by fraud and deceit, and fraudulent and false representations, procure the said Stallings to make said will.

4th. That the said Weekes used fraudulent practices upon the fears, affections and sympathies of the said Stallings, and thereby procured him to sign said paper as his will.

The case was carried to the Superior Court by appeal. Upon the trial there had, the evidence was voluminous, and as every question of law made is presented in the motion for a new trial, it is deemed best not to encumber the case with so much useless matter.

The jury returned the following verdict:

"We, the jury, find the paper exhibited to us not to be the will of William Stallings through undue influence." The propounder moved for a new trial upon the following grounds, to-wit:

1st. Because the court erred in admitting the following testimony of William Peek: "From the facts stated, in his opinion. William Stallings was beyond question an insane man." "The last time he saw Stallings, his mind was lost and insane; Stallings was in a condition to be easily influenced the last time he saw him." "When he last saw Stallings, he seemed to be under the influence of Weekes altogether; he cannot say what the precise extent of Weekes' influence was, though he seemed to be obedient to the commands of Weekes."

2d. Because the court erred in admitting the following testimony of the caveatrix, Virginia Dennis: "My father was a *person of unsound mind. 1 did not know that Mr. Weekes was the first and probably by far the largest legatee in the will." "Weekes said that if that will was broken, they might carry him to the gallows the day after it was done." "Mr. Weekes told me he had my father to make the will in order to protect my father\'s estate from a third party, Nancy Stallings\' illegitimate child."

3d. Because the court erred in admitting the following testimony of Ellen Hill: "At the supper table he sat down and did not eat anything. I said to him, 'Mass Billy, why don't you eat?' He said, 'I have done something this evening I ought not to have done; I have made my will, and did not make it as I wanted to.' " "Mr. Persons came over to see Mr. Stallings. He asked Mr. Persons what was in the will? When told, he said, 'Lord God Almighty, who ever heard of such a will, but I can't change it. I know I did wrong; I could not help it.' I heard him tell Mr. Persons to get it and to tear it up."

4th. Because the verdict is contrary to evidence, law and the charge of the court.

The verdict was set aside and a new trial ordered; whereupon caveatrix and her. husband excepted.

Hfnry L. Benning; Willis & Willis; W. B. Hill, for plaintiffs in error.

E. H. Worrill; M. H. Blandford, for defendant.

Trippe, Judge.

1. It was not denied in the argument that a witness may give his opinion of the sanity of a testator, and indeed on any other question to be decided by the jury, and which is one of opinion, provided he gives his reasons therefor: Code, section 3867.

2. Under this rule, a portion of the testimony of the witness Peek, which was objected to, was admissible, and part not.

He states how the testator appeared and acted, the last time *he saw him; describes his manners and conversation, and then gives "his opinion from the facts stated." Mrs. Dennis (the caveatrix) is still more full and explicit in stating the facts on which her opinion of the insanity of her father is founded.

3. But when the former witness (Peek) says "he was in a condition to be easily influenced, " he is giving a conclusion of his mind growing out of the opinion he had already expressed, and does not offer any facts illustrating the matter of his being easily influenced. This statement of the witness bears upon the issue made of undue influence. Insanity and unsoundness of mind, is one thing, undue influence quite another. So, when the same witness says that the testator "seemed to be altogether under the influence of Weekes, he cannot say what the full extent of Weekes\' influence over Stallings was, though Stallings seemed to be obedient to the command of Weekes, " he should have given the facts on which these statements were based. He recites none; no act of Weekes showing power or control; no yielding on the part of Stallings to a command or even wish of Weekes, exhibiting submissiveness. It is a general statement of how matters "seemed, " as to the relation between the parties he was referring to, without a single act or fact illustrating it, or furnishing a foundation for his impression. He does say he negotiated with Weekes, who professed to be acting as the agent of Stallings, for the purchase of a plantation belonging to testator, but sets forth nothing in the negotiation or otherwise, manifesting power or control on the part of Weekes, or the "obedience" of Stallings to him.

4. Another exception to the testimony was, the admission of the remark made by Mrs. Dennis, that "she did not know that Weekes was the first and probably by far the largest legatee in the will." Although this may not have been competent to prove that the executor was such a legatee as described by the witness, yet, it was admissible in another view and for another purpose. Mrs. Dennis was the caveatrix. She had just admitted that under certain information given her by the executor, as to disposition of the property by the will, she had *once told him "if that was true, she was satisfied." It was also in proof by a witness for the propounder, that she had, just after the death of her father, "expressed herself as satisfied, " meaning with the will. It is true, this went in after her testimony was objected to, and admitted. But in passing on the competency of testimony courts will look at the whole record. The witness, then, by her own admission (without considering the subsequent testimony on that point) stood as one contesting that with which she had on a former occasion said she was satisfied. It was competent for the propounder to prove she had so said. Unexplained, it would have put upon her the burden of having taken two conflicting positions, at one time approving the will, and now contesting it in court. She should have been allowed to explain this, and to have given her reason to be considered for what it was worth, as such, why she had changed her former purpose. Moreover, it was claimed on the trial by her that the executor was, in fact, a large beneficiary under the will, and evidence on that point, pro-and con submitted. It was a material question, strongly urged, and strongly denied. It rested largely on facts outside of the will. The caveatrix did not at the time she refers to, (when the admission was made.) know how the property was disposed of by the will, except from what the executor told her. Such, at least, is the import of her testimony. She certainly had the right for the purpose of explanation, to give the reason she...