English v. Shivers

• Decision Date: 03 March 1965
• Docket Number: No. 22844,22844
• Citation: 220 Ga. 737,141 S.E.2d 443
• Parties: Emmett Johnson ENGLISH v. Guy H. SHIVERS et al.
• Court: Georgia Supreme Court

Page 443

141 S.E.2d 443

220 Ga. 737

Emmett Johnson ENGLISH v. Guy H. SHIVERS et al.

No. 22844.

Supreme Court of Georgia.

March 3, 1965.

Rehearing Denied March 16, 1965.

Syllabus by the Court

1. There is no authority of law for the propounder to make a motion for continuance on the ground that twelve months have not passed since the substitution of the personal representative of a deceased caveator as a party to the probate of a will, and the lower court did not err in denying the motion or in overruling the special ground of the motion for new trial assigning error on the refusal.

2. There being some evidence of sanity and of insanity of the testatrix at the time of the execution of the will, the lower court did not err in overruling the motion for judgment notwithstanding the verdict in accordance with the prior motion for directed verdict made by the propunder of the will. Nor were the general grounds of the motion for new trial meritorious for the same reason.

3. The allowance in evidence of a lunacy proceeding which shows on its face that it was a nullity for lack of proper notice to give the court of ordinary jurisdiction of the person was erroneous and likewise caused the charge of the court on the burden of proof also to be erroneous, which requires the grant of the motion for new trial on the special grounds complaining of these errors.

4. A written request to charge which is legal and adjusted to a distinct matter in issue should be given in the exact language requested, but such request must be correct and even perfect in order to require a charge as thus requested.

5. The testimony of a witness that in his opinion, based upon stated facts, the testatrix was without testamentary capacity is not rendered inadmissible by his further testimony elicited by questions of counsel that the testatrix was obsessed with hostility toward her children, although monomania had been stricken from the caveat on demurrer, since his testimony further shows he has no clear conception of the meaning of the word 'monomania.'

6. Non-expert witnesses may testify to their opinion of the mental condition of the testatrix as to her state of mind in conversations and actions of the testatrix of which they have actual knowledge and may offer such testimony to show the state of mind of the testatrix.

7. For the reasons stated above a new trial will be necessary in this case, and the lower court erred in overruling the amended motion for new trial.

This case involves the validity of a will in a trial on appeal to the superior court from the court of ordinary after the filing of a caveat, which at the time of the trial, alleged merely insanity. The propounder of the will was a stranger to the family, who had befriended the testatrix and who was named as executor and sole beneficiary of her estate, and the caveators are the children of the testatrix. The testatrix and her six children survived her husband who left a considerable estate by will to them. Shortly after her husband's death, she was declared incompetent and a guardian was appointed for her person and property, thereby depriving her of the legal management of her affairs. This proceeding was brought by five of her six children who as the nearest relatives also waived the ten day notice, and in two days time a commission was appointed and, after a hearing, found her incompetent, and the court appointed two of them as guardians. Despite the guardianship, the testatrix lived separate from her children except for an afflicted daughter who lived with her, and she did not hesitate in making public her bitterness and resentment toward her children, notably arising out of the division of her husband's estate and the guardianship proceeding and commission to test her competency, although the witnesses differed as to the exact cause and extent of the resentment. She wrote a column in the local weekly newspaper, actively took part in certain community, civic and political activities, voted, had a driver's license, drove her own car, and visited friends and relatives in nearby towns. The testimony shows that during the nine years she lived after her husband's death she consulted several lawyers about various legal matters and finally about two years before her death had one of them in an adjoining county where she frequently visited a sister to draw her will.

On the date the will was executed she employed a young man to drive her to Sparta and she there executed the will in the presence of her sister, her nephew and the lawyer. All of these persons, including the young man who drove her on this occasion, testified as to her mental condition on this date. Testimony of neighbors, friends and relatives all testified as to their opinions as to her mental condition, giving the reasons on which they based these opinions, ranging from normal, slightly 'off,' competent, incompetent on occasion, increasing incompetency, to absolute insanity. One of the doctors who was a member of the commission examining her competency in 1953 testified that she was suffering from pressure on the brain, hypertension, which grows worse with age, and it affected her mind, and 'she was 'flashy', erratic sometimes and sometimes normal.' The caveators who testified stated they did not mistreat their mother but helped support her, although in considering this evidence, opinions of others would differ as to whether or not it amounted to mistreatment.

At the conclusion of the evidence the propounder made a motion for a directed verdict which was overruled. The jury returned a verdict in favor of the caveators, and the propounder made a motion for judgment notwithstanding the verdict in accordance with the motion for directed verdict, and a motion for new trial which was later amended. After a hearing, the court overruled both of these motions and the exceptions are to these judgments.

Jack D. Evans, Randall Evans, Jr., Thomson, for plaintiff in error.

J. Cecil Davis, E. Purnell Davis, W. Tom Veazey, Warrenton, for defendant in error.

DUCKWORTH, Chief Justice.

1. The statutory provision Code § 113-1526, that no suit to recover a debt due by a decedent shall be commenced against his legal representatives until the expiration of 12 months is for the security of the representative and not for the benefit of others, and if he suffers a judgment thereon its validity thereafter can not be brought into question. Baker v. Shephard, 30 Ga. 706; Hill v. Julian, 119 Ga. 607, 46 S.E. 834. Therefore, whether or not this be a case in which the personal representative could request a continuance or abatement on this ground, Code §§ 3-402, 3-405, 3-412; Stancil v. Kenan, 35 Ga. 102; Haley v. Evans, 60 Ga. 157; Lanfair v. Thompson, 112 Ga. 487, 37 S.E. 717, no such request has been made, and the estate is bound by the action of the representative. The ground of continuance brought by the propounder is without merit, and the court did not err in overruling this ground of the amended motion for new trial.

2. Since there was evidence as to the sanity and insanity of the testatrix both before and after she made the will which is completely in conflict, there was some evidence of her lack of testamentary capacity to make a will at the time of its execution, which evidence was sufficient, if believed by the jury, to authorize the verdict in favor of the caveators, and this court can not reverse the lower court in overruling the motion for judgmetn notwithstanding the verdict in accordance with the motion for directed verdict. Whether or not the testimony of the witnesses who were present or near the testatrix on the day she made the will was sufficient to establish he testamentary capacity, there was other testimony that she was insane, and this testimony relates to a reasonable period of time before and after the execution of the will and can be considered in determining her state of mind at the time of executing or ackonwledging the will. Code §§ 38-102, 113-106, 113-202, 113-204, 113-205; Terry v. Buffington, 11 Ga. 337; Manley v. Combs, 197 Ga. 768, 30 S.E.2d 485; Jarrard v. State, 206 Ga. 112, 55 S.E.2d 706; Brock v. State, 206 Ga. 397, 57 S.E.2d 279; Pantone v. Pantone, 206 Ga. 305, 57 S.E.2d 77. This case differs on its facts from Hill v. Deal, 185 Ga. 42, 193 S.E. 858; Scott v. Gibson, 194 Ga. 503, 22 S.E.2d 51; Espy v. Preston, 199 Ga. 608, 34 S.E.2d 705; and Fehn v. Shaw, 199 Ga. 747, 35 S.E.2d 253, and cases cited therein. There was evidence of aberration of intellect which would, when coupled with the fact that the testatrix bequeathed her entire estate to a stranger to the exclusion of an afflicted child as well as her other children, make a question for the jury to weigh the testimony and determine whether or not the testatrix had the mental capacity to make a will at the time of its execution. See Code § 113-106; Deans v. Deans, 166 Ga. 555, 144 S.E. 116; Deans v. Deans, 171 Ga. 664, 681, 156 S.E. 691, 74 A.L.R. 222; Brock v. State, 206 Ga. 397, 57 S.E.2d 279, supra; Bowman v. Bowman, 205 Ga. 796, 55 S.E.2d 298; Smith v. Davis, 203 Ga. 175(2), 45 S.E.2d 609.

3. The fourth special ground complains of the allowance in evidence of a certified copy of a lunacy proceeding against the testatrix and appointment of a guardian for her, which was objected...