Ehlers v. Rheinberger

• Decision Date: 07 September 1948
• Docket Number: 16296,16298.
• Citation: 49 S.E.2d 535,204 Ga. 226
• Parties: EHLERS v. RHEINBERGER. RHEINBERGER v. EHLERS.
• Court: Georgia Supreme Court

49 S.E.2d 535

204 Ga. 226

EHLERS v. RHEINBERGER.

RHEINBERGER v. EHLERS.

Nos. 16296, 16298.

Supreme Court of Georgia

September 7, 1948

[Copyrighted Material Omitted]

Syllabus by the Court.

1. In the instant action for probate of an alleged will and codicil, the propounder, by proof of their formel execution under circumstances indicating freedom of will and action succeeded in carrying the initial burden by making out a prima facie case for their validity, and thereby shifted to the caveatrix the burden of showing that such instruments were procured by undue influence, as alleged in the caveat.

2. The attack upon both the will and codicil being tried together under the same evidence, and so treated by counsel, and the evidence being wholly insufficient in law to show undue influence as to the making either of the will or of the codicil, the directed verdict as to the will must be affirmed, while the judgment and decree disallowing probate of the codicil is reversed. Since the issue as to the validity of the codicil must be tried again, two errors on the former trial are pointed out, in order that they may not occur again.

(a) The trial court erred in permitting the caveatrix to prove the value of the testator's estate as of 1947, for the purpose of illustrating the reasonableness or unreasonableness of a devise to the propounder for consideration by the jury on the question of undue influence in the procurement of the will in 1933 and the codicil in 1936.

(b) For reasons hereinafter appearing in the opinion, the trial court erred in making an inaccurate statement in its charge to the jury with respect to a pertinent provision of the will, which inaccuracy might reasonably have prejudiced the rights of the propounder.

Mrs. Lula Rice Ehlers filed a petition in the Fulton County Court of Ordinary to probate in solemn form the will and codicil of C. J. Rheinberger. Willie Mae Rheinberger, the testator's niece and sole heir at law, filed a caveat to the probate of the will and codicil, on the grounds that the alleged will and codicil of the deceased were not in fact and reality his will, but that the same were secured through undue influence exerted over him by the chief beneficiary, said Mrs. Ehlers, who was not related to him by blood or marriage, but was his 'spiritual advisor, housekeeper, and agent in certain business matters.' After a hearing, the ordinary admitted the alleged will and codicil to probate in solemn form. Mrs. Lula Rice Ehlers then qualified as executrix, as provided in said will. Under the terms of the will, she was named the chief beneficiary with the provision that she would 'provide and care for my niece, Willie Mae Rheinberger, as she sees fit.' Under the terms of the codicil, the above provision was eliminated by a bequest of $1000 to said niece 'in lieu of the above provision,' and all of the remainder of the estate was given to said Mrs. Ehlers. From the judgment of the ordinary, admitting to probate the will and codicil in solemn form, the caveatrix filed her appeal to the Superior Court of Fulton County. Before the trial Mrs. Ehlers, the propounder, died and her son, Albert T. Ehlers, qualified as administrator of the estate and by order of court was substituted in the case. The trial resulted in a directed verdict in favor of the validity of the will, while the jury was left to determine the validity of the codicil, and found against its validity. Exceptions pendente lite were duly filed by the caveatrix to the order directing a verdict as to the will. Motions for new trial were filed by the propounder as to the verdict and judgment with respect to the codicil, and by the caveatrix with respect to the verdict and judgment in favor of the will at the direction of the court.

John M. Slaton, John H. Hudson and J. Walter Le Craw, all of Atlanta, for plaintiff in error.

Walter A. Sims, Jos. S. Crespi, and Harold Sheats, all of Atlanta, for defendant in error.

JENKINS Chief Justice.

1. On the main bill of exceptions, the propounder complains of the verdict and judgment finding against the validity of the codicil. Whereas, on the cross-bill of exceptions, the caveatrix complains of the directed verdict in favor of the will. The first question for determination in this connection is whether or not the propounder has carried the burden of proving the formal execution of the two instruments. The law upon this subject is: 'On the trial of an issue arising upon the propounding of a will and a caveat thereto, the burden, in the first instance, is on the propounder to make out a prima facie case, by showing the factum of the will, and that at the time of its execution the testator apparently had sufficient mental capacity to make it, and, in making it, acted freely and voluntarily.' Spivey v. Spivey, 202 Ga. 644, 44 S.E.2d 224. To make out a prima facie case, and to be entitled to a judgment of probate in solemn form, the propounder must introduce at the hearing all the subscribing witnesses, if living and accessible, or proof of their signatures, if dead or inaccessible. Code, § 113-602. In dealing with the proof necessary to shift the burden to the caveator, this court has said in Thompson v. Davitte, 59 Ga. 472, 475: 'The truth is, that what the propounders have to carry, on the score of sanity and freedom, is more in the nature of ballast than of cargo. It is just burden enough to sail with--no more.' And in Evans v. Arnold, 52 Ga. 169, 181, this court said: 'Undoubtedly sanity is the normal condition of man, and if, on an examination of the circumstances attending the execution, nothing unusual appear; if the testator appears to be aware of what he is doing, and acts as same men do, I am of the opinion that a prima facie case is made out, at least that a verdict for the will would be justified, if, when the facts are detailed, the act as done is done as same men do things--as if a man ask a witness to attest his will, and the witness do so on its being signed by the testator--the very act of signing, intelligently, is a sane act.'

Since the issues as to the validity of both the will and codicil were tried together, we shall set out the evidence with respect to the execution of both instruments. The uncontradicted evidence with respect to the execution of the will is that, on April 15, 1933, C. J. Rheinberger, a machinist working at the Southern Railroad Shops in Atlanta, walked into the ordinary's office in the Fulton County courthouse alone, and asked his friend, Arthur Marbut (now deceased) to witness his will. Mr. Marbut called Mrs. L. D. Portwood (now Mrs. F. J. Jackson) and Mrs. V. J. Brown, who together with Mr. Marbut constituted the three witnesses to the will. Mr. Rheinberger signed in the presence of these witnesses, and they signed as witnesses to it, in the presence of each other and in the presence of and at the request of the testator. The witness Mrs. Jackson testified: 'At this late date I do not remember any conversation that took place other than his asking us to sign his will as a witness.' She identified as genuine the signature of Mr. Marbut, and testified that he died about 1934. She identified as genuine the signature of Mrs. Brown, and testified that Mrs. Brown had been living in Jacksonville, Florida, for a number of years. She further testified that Mr. Rheinberger 'was apparently in possession of normal faculties.' The testimony as to the execution of the codicil is that some three years after the execution of the will the testator came to the ordinary's office again, and asked H. T. Kemp and others to witness his signing. All three of the witnesses to the codicil testified that the testator was apparently in possession of his normal faculties. Mr. Kemp, the only witness who had known the testator previously, testified that he had known him for many years as a machinist at the Southern Railroad shops, and that he was 'a person of sound mind at that time.' There was further testimony with respect to the soundness of mind of the testator, in substance as follows: Nelson Crist testified that he had come in contact with the testator over a period of many years, mostly in the Battle Hill Lodge room, including the years 1933-1936, and that Mr. Rheinberger was 'to all appearances of sound mind.' Charles D. Clarke testified that he is president of the American Savings Bank, and that C. J. Rheinberger became a director of that bank in January, 1936, and remained on the board of directors through 1941; that Rheinberger was present at almost every meeting and was active as a director; that he served on the real-estate committee of the board of directors and as such would discuss and go over the real estate with the committee each month; that he knew the testator even after he went off the board of directors in 1941, and that during all this time he was, in the witness' opinion, a man of sound mind. 'I would say he was a strong-minded man; a person of strong mind, he had very definite ideas of what he wanted.'

Under the law and the evidence, as above set forth, we conclude that the propounder, by establishing the factum of the will and codicil and by proof of the attendant circumstances indicating mental capacity and freedom of will and action, succeeded in making out a prima facie case for the validity of the will and codicil such as would shift the burden upon the caveatrix to show that the instruments were invalid by reason of a degree of undue influence exercised upon the testator, such as would deprive him of his own free will and substitute therefor that of the beneficiary.

2. It is the contention of the caveatrix that the evidence adduced upon the trial was sufficient to overcome the presumption of validity raised by proof of the formal execution of the will...