Fehn v. Shaw

• Decision Date: 08 September 1945
• Docket Number: 15248.
• Citation: 35 S.E.2d 253,199 Ga. 747
• Parties: FEHN et al. v. SHAW.
• Court: Georgia Supreme Court

35 S.E.2d 253

199 Ga. 747

FEHN et al. v. SHAW.

No. 15248.

Supreme Court of Georgia

September 8, 1945

Syllabus by the Court.

Where testamentary capacity is the issue, the controlling question to be determined is the condition of the mind at the time of the execution of the will. As tending to illustrate the mental condition at that time, evidence of such condition at other times may be received, but where it is sought to establish testamentary incapacity by such evidence, it does not controvert the positive testimony of the subscribing witnesses unless it would be proof of testamentary incapacity at the time the will was signed.

(a) Applying the above principle to this case, there was nothing in the evidence produced by the caveators which would have authorized a finding that at the time of the execution of the will the testator did not possess testamentary capacity, and the court did not err in directing a verdict for the propounder.

This case was previously before the Supreme Court. Shaw v Fehn, 196 Ga. 661, 27 S.E.2d 406.

The trial in the instant case was confined to the sole question of testamentary capacity. At the conclusion of the evidence the court directed a verdict for the propounder.

The will of Martin Fehn provided for three legatees, his wife Magdelena and his two sons Joseph and Michael. To Joseph, the older son, he gave one dollar; to Michael, the younger son he gave one half of his money in banks; and to his wife Magdelena, the rest of his property. The two sons filed a caveat.

It was uncontradicted that the testator, Martin Fehn, had been married three times. His first wife, the mother of the two sons, who were the caveators, died in 1906. A few months later he married Louise Fehn. He was injured in an automobile wreck in January, 1938, and his second wife with whom he had lived since 1906, died April 5, 1938. In October, 1938, he received a second injury to his spine. On November 10, 1938 he married his third wife, Magdelena. He executed his will on March 20, 1939, and died May 1, 1941.

W. M Thompson, a witness to the will, testified in part: Martin Fehn came into the office of the witness to pay some fire insurance. After making the payment Fehn said he wanted a named person to witness his will. Upon being told that the person was out, Fehn said, 'You are a younger man, and I would rather have you witness it.' The witness related the circumstances under which the will was executed, and stated: 'In my opinion, Mr. Martin Fehn was of sound mind and of disposing memory at the time he made the will and signed it.'

Reavis L. Jones, another witness to the will, testified that in his opinion the testator was of sound mind, and further that the third witness whose signature was identified died on February 25, 1940.

Fred Farris testified: Before Martin Fehn was injured in the automobile wreck he was an excellent mechanic and a man of good judgment. A change came over his mind after the death of Louise Fehn. He hardly seemed like the same man. He was forgetful, easy to get mad, high-tempered and got to drinking heavily. The witness thought 'it was just * * * an old man gone bughouse.' In an ordinary conversation he would be talking about one subject for a little while and then jump off to another. The last time the witness saw the testator, five or ten days before he died, he was in worse shape mentally than he had ever seen him. 'I don't know what his mental condition was on the 20th of March, 1939. * * * I could not say I saw him in March.'

Mrs. A. Harrold testified: She noticed a change in Martin Fehn's mental condition after the death of his second wife. He began to break and was not himself at all. When he talked he would start on a conversation and go around in a circle and get all balled up and did not know where he was, and he did not know who he was talking to, and yet he had known the witness for a long while. After the witness would tell him who she was, probably ten or fifteen minutes later, he would ask who she was. The last time the witness talked to him was after he was married to the other Mrs. Fehn and he was getting from bad to worse. Part of the time he recognized the witness and part of the time he did not. The witness was not in Fehn's home very much after his third marriage. She would not say his mind was very sound; would not think Fehn had enough judgment to know what he was doing in his business, to be a good judge for himself. He was in the seventies. He could talk all right and did talk, but it just did not make sense. He would be talking about things the witness knew about, and then he would talk about other things that she knew nothing about. The time that Fehn got worse was after he married Magdelena. It started about the time of Louise Fehn's death and got worse as long as the witness knew him. The last time that the witness saw him was about two weeks after he married Magdelena, and his condition then was worse. The witness did not know what his mental condition was on March 20, 1939, about four months later.

Mrs. T. B. Green testified: She noticed a difference in Fehn's conversation and his mental condition after the death of his second wife. He would be talking on one subject and then change off and start on another. He didn't carry on a connected conversation, and his condition was noticeable. It got worse. He didn't recognize the witness or her children, and before that he knew them. The last time the witness saw him was about six months after Louise Fehn's death; she was there one time after he married Magdelena. After the death of Louise until the last time the witness saw him, he was 'unsound of mind because he did not know his right mind.' The witness did not remember the date when he became of unsound mind.

Sergeant John Caldwell testified: After the death of Louise Fehn the testator seemed more childish. One time the witness would go over to see him to borrow something, and he would say, 'All right,' and then sometimes the witness would go and ask the same thing, and he would blow up and raise sand. The witness did not know what his condition was on March 20, 1939.

Joe Bauml testified: There was a lot of difference in Fehn after the death of his second wife. He would get all mixed up in his conversations, and it looked like he did not have his right mind. He could not carry on a connected conversation. He did some drinking, and he never did that before. The witness saw him a month before he died. From the time of his last marriage until about a month before his death, the witness saw him about every two weeks. 'His mental condition was noticeable during all of this time. * * * Mr. Fehn's mental condition on March 20, 1939, was pretty good, and we would go to the Turnverein and play cards, he was all right then, that was in 1939. I did not notice anything wrong with him.'

Mrs. E. C. Caldwell testified: After Louise died Fehn's mind was not good any more. He would ask the husband of the witness to do some work for him, and her husband would do it just like Fehn told him to, and then Fehn would bawl him out. Fehn would change his mind every few minutes. He could not carry on a connected conversation. He would change from one subject to another right in the middle of a conversation and could not recognize people that he had known before his wife died. The witness did not know whether his mind got better or worse after he married Magdelena, but thought it got worse because he just wandered around about the place. When the witness was asked if she would say that the testator was not sufficiently mentally capacitated to know and understand what he was doing when he undertook to do anything because of his changing his mind so much and not talking about anything except his houses and moving people out of them and being dissatisfied with the work that her husband did for him--she answered that she did not know. Likewise, when asked if she thought that the testator 'would understand and know about disposing of his property if he was going to make a will,' the witness replied: 'I don't know if he would be mentally capacitated to make a deed to property. I don't know if he was capable of having intelligent ideas about making a will and disposing of his property.'

W. G. Spaulding testified: He could see a difference in the testator's mental condition after his wife's death. He did not seem to be the same. His mind did not seem to be quite as alert as it was before she died. This condition was noticeable in his conversations. He could not stick to one subject for any length of time. He would seem to ramble around and did not make sense.

Dr Edward T. Newell testified: Martin Fehn first came to the sanitarium January 22, 1938, with a fracture of the first lumbar vertebra. It was necessary to place him in a plaster cast. He remained in the hospital until February 19, 1938. He was seventy-four years old. He came back a second time on October 31, 1938, and remained in the hospital until November 10. He had suffered another injury to the spine. He showed the ravages of having been in a cast for a period of about ten months; and, along with his body, his mind...