Evans v. Arnold

• Decision Date: 31 January 1874
• Citation: 52 Ga. 170
• Parties: Isabella Evans, plaintiff in error. v. Richard D. Arnold et al.,defendants in error.
• Court: Georgia Supreme Court

52 Ga. 170

Isabella Evans, plaintiff in error. v. Richard D. Arnold et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1874.)

Wills. Probate. Monomania. Insanity. Order of argument. Onus probandi. Before Judge Schley. Chatham Superior Court. May Term, 1872.

On the 5th April, 1867, Isabella Evans petitioned the court of ordinary of Chatham county to set aside the probate in common form of a paper purporting to be the last will and testament of Esther Goldsmith, upon the grounds that, at the time of its alleged execution, she was incompetent to make a will; that the will was the result of monomania, and had been procured from her by the misrepresentations, fraud and undue influence of the propounders, and by mistake, upon her part, as to the conduct of the heirs-at-law. On May 6th, 1867, the ordinary, after hearing the case, "ordered, adjudged and decreed that the said several grounds of objection are overruled, and that the said will propounded is the will, duly proved, of the testatrix, Esther Goldsmith."

From this judgment of the court of ordinary an appeal was duly taken to the superior court of Chatham county; and, upon the hearing of the said cause, Richard D. Arnold and *Andrew M. Ross proceeded to propound the will in the usual form, examining two of the attesting witnesses, and were about to read the paper to the jury, when counsel for caveatrix objected, for the reason that only two witnesses had been examined, and the third witness had not been accounted for. The court overruled the objection, saying that the pro-ceeding was not a probate of the will in solemn form, and that, therefore, it was not necessary to produce or account for all the subscribing witnesses; to which ruling counsel for caveatrix excepted. But thereupon claimed that, under this ruling of the court, the caveatrix was entitled to the opening and the conclusion of the case. This claim was also overruled; and counsel again excepted. The will was read to the jury. At no stage of the trial was the third attesting witness either produced or accounted for.

This instrument left all of her estate to her friends, Richard D. Arnold and Andrew M. Ross, of the city of Savannah, to have and to hold the same in trust for her idiotic daughter, Henrietta, for and during the term of her natural life, the income and profits thereof, or so much as may be necessary, to be appropriated for her liberal maintenance, and proper care and protection, and commended her said daughter to their particular care and kindness, and from and after the death of her said daughter, gave said entire estate to the said Arnold and Ross, to be equally divided between them, to have and to hold the said estate to them and their heirs and assigns, freed and discharged from any and all trusts whatsoever.

The propounders having closed, Mr. Solomon Cohen was presented as a witness for caveatrix. During the course of his examination he stated that he filled the chair of medical jurisprudence in the Savannah Medical College; that it had come into the line of his duty to study, and to lecture upon, the subject of the mind; that he bad devoted a good deal of time and Study to the subject of insanity; that he thought he understood it pretty well, and had seen and noticed many cases of it; that he had known Esther Goldsmith for many *years, and had been thrown into confidential relationship with her.

Thereupon counsel for caveatrix requested him to express his opinion as an expert in regard to the soundness of her mind. Counsel for propounders objected; the objection was sustained, and counsel for caveatrix excepted.

Counsel for caveatrix complained of error in the charge of the court upon the following grounds:

1st. Because the judge used such language in various places, as clearly indicated to the jury his own views of the facts of the case.

2d. Because he assumed throughout that the execution of the will might have been duly proved to the satisfaction of the jury, when only two of the subscribing witnesses had been produced, and the third was not accounted for.

3d. Because he so charged upon the subject of monomania as to preclude the jury from recognizing evidence of it in the mode in which Esther Goldsmith sought to carry out her intention as regarded "her imbecile and idiotic daughter, " provided they should find the intention itself to be natural and rational, and intimated that all the evidence, whether to be didcovered from such mode, or from the testimony of the witnesses, showed mere "eccentricity of habit or thought, " which did not incapacitate her for making a will.

The following was the language of that part of the charge: "You must, in this connection, then, first find whether or not the testatrix was a monomaniac, and upon what particular subject. If you find that she was not a monomaniac, then all further investigation of this question will be unnecessary. If you find that she was, and on what subject, you must then ascertain whether the will was the result, or offspring, of this delusion. The contents of the will must here engage your attention. What was the object and intention of the testatrix? Who was the object of her bounty? Was her solicitude for her imbecile and idiotic daughter natural or unnatural? Was it or not a delusion, that she should especially provide for this unfortunate daughter, and was her effort so *to do the result of a delusion, or the honest attempt to satisfy the natural yearnings of a maternal heart? If you find the motive natural, and founded on facts already existing, and not the fancies of a distempered intellect, then the will cannot be set aside on the ground of monomania. If her intention was a rational one, the mode in which she carried out that intention does not concern you. It is not necessary that her method of carrying out that desire should or should not coincide with your own ideas of what would have been the best mode or manner of disposing of her property, so as most advantageously and successfully to accomplish her purposes, for in the language of our Code, section 2373, eccentricity of habit or thought does not deprive a person of the power of making a testament."

Counsel for caveatrix requested the court to charge as follows: 1st. "That if they found from the evidence, the existence of insanity in one of the children of testatrix, that fact raises a violent presumption of its having existed in herself." The court declined to give this request, saying that "it would be an expression of opinion on the testimony, " but proceeded forthwith to add that, "as a principle of law, the court did not recognize it, as it was inconsistent with the common experience of mankind."

2d. "That the rule of evidence in favor of affirmative over negative testimony is a general one, and if they find from the testimony of any of the witnesses, facts which tend to show that the testatrix was insane, such facts are in no wise to be discredited because other witnesses may not have seen the same or like facts."

After reading over the request the court said: "I charge the first sentence of this request as a general rule of evidence. But the evidence with reference to sanity or insanity does not raise this question, and does not resolve itself into positive and negative testimony—the facts showing insanity may be as positive as those showing sanity, and it cannot be assumed that because anity is the normal condition of the mind that evidence thatany one is not sane is negative in its character."

*3d. "That the jury are not bound to believe according to the number of witnesses who have testified before them; but must consider the circumstances in which those witnesses were placed, their means of knowledge, their connection with and relationship to the parties, and, indeed, anything affecting their credibility. But if they find that all of them are unsuspected, and of equal credibility, then they are to believe the larger number rather than the smaller, who are in conflict with them."

The judge struck out the words "they are to believe" and substituted the words "they may believe, " saying, "the matter of credibility is left to the jury."

4th. "That the burden of proof is upon the propounders."

The court refused so to charge.

5th. "That the caveatrix being the next of kin, together with others, of the deceased, and as such entitled to the distribution of the estate, if the will fails, the onus probandi is on the propounders. They must make out a case by satisfactory proof to prevent the distribution, according to law, of the decedent's estate."

The court said I give you this in charge, but it means as to the due execution of the will.

6th. "That a person may generally appear sensible in the ordinary intercourse and transactions of life, and even reason clearly upon learned and scientific subjects, and yet be the victim of positive derangement."

The court gave this in charge, but interpolated the following words, "but if lucid, when the will is made, or if the will be not the result or offspring of the particular derangement, the will need not be invalid."

7th. "That if they shall find from the evidence that the testatrix was insane at any previous period in her life, such mental state thus proved to have existed, they must presume to continue, unless they also find that it has been rebutted by proof equally strong."

The court refused to charge this, and added: I decline toexpress any opinion as to proof required, and charge in the *language of the Code, "that a mental state once proved to exist is presumed to continue, but may be rebutted by proof."

8th. "That under the laws of this State, whilst a testator may bequeath his entire estate to strangers, to the exclusion of the next of kin or heirs, yet in such case the alleged will should be closely scrutinized, and upon the slightest evidence of aberration of intellect, or collusion, or fraud, or any undue influence, or unfair dealing, probate should be...