Gaither v. Henry. Gaither And Others

• Decision Date: 30 November 1856
• Docket Number: N0. 137.
• Parties: Elizabeth Gaither, plaintiff in error. vs. Henry. Gaither and others, defendants in error.
• Court: Georgia Supreme Court

20 Ga. 709

Elizabeth Gaither, plaintiff in error. vs. Henry. Gaither and others, defendants in error.

N0. 137.

Supreme Court of the State of Georgia

NOVEMBER TERM, 1856.

Caveat to will. On appeal, in Putnam Superior Court. Tried before Judge Hardeman, September Term, 1856.

Brice T. Gaither died September, 1853, and by his will, gave the whole of his property to his wife for life, and the one-half to his brothers and sisters at her death. His widow qualified as executrix of the will. Afterwards, in 1856, she moved to revoke the probate of the will, on the following grounds:

1st. Because of the want of testamentary capacity.

2d. Because the will was written at the dictation of Henry Gaither, father of the deceased.

3d. Undue influence of Henry Gaither.

Geo. F. Pierce, one of the witnesses to the will, testified, that he witnessed the will on the night testator died; testator was powerfully excited in a prospect of death, and an avowed certain assurance of salvation; saw no evidence of delirium; when the will was spoken of, consented that his father and Luther Smith should retire for the purpose of writing it; and when they returned, and the will was read, he seemed to understand and be satisfied with it. Witness was sent for between 12 and 2 o'clock at night; the messengen went after Smith to write the will; testator was much excited, and his religious fervor manifested itself by expressions of praise to God, and in terms of great affection for his wife.

Dr. Henry Gaither went to the bedside to talk to him about his will; Dr. H. Gaither first spoke of a will; when the will was read, testator made no reply, but by look and gesture, as witness understood him, assented to it. He was told to sign it, and did sign it. I did not consider him in a business frame of mind, or as able to criticise, accurately, the terms, provisions and limitations of the will or the estate created thereby, but yet, as knowing what he was about, and as acting understandingly.

William Bass, another witness to the will, was with testator for an hour before making the will; conversed ration-ally. After the will was read in presence of Mrs. Gaither. testator asked his wife if it suited her; she answered that it did, and he then signed it. When Mr. Smith came, he and Dr. Gaither had some conversation; then they went together to the bedside; Dr. Gaither told Brice, if he wished to make a will, Mr. Smith would arrange it; the reply was not heard by witness. Dr. G. then asked if he wanted to dispose of his property in the manner he had told him, Dr. G.? Brice said he did. Smith and Dr. G. then retired to write the will.

This witness was asked if he did not write a letter to As-bury A. Adams, dated "Oxford, Ga., Oct. 9th, 1855, " in which he said, "I was present when Luther and the old Dr. went to Brice's bed for the purpose, as I suppose, of ascertaining the manner in which he wished his property disposed of." He admitted writing such a letter, and supposed it was of that date.

Luther M. Smith, the other witness, confirmed the others as to his capacity. Testator was highly excited religiously; he did not seem to be engaged about the disposition of his Worldly goods; he thought and said he was dying; Dr. Henry Gaither dictated the provisions of the will to witness, who wrote it. The day after the will was made, witness remembered that he was told to give one half of the estate to the wife absolutely, and that he had forgotten to give her the half of the estate after her life estate. He called on Dr. Henry Gaither and told him of the mistake; he expressed a willingness to correct it, and said he would have it attended to; witness called two or three times to have it done; it never was done. Testator asked his wife if she was willing to the will; she said she was satisfied with any arrangement he might make. He supposes testator was in a frame of mind which would admit of bis attention to business, but not so likely to criticise the terms and provisions of a will as he would have been under other circumstances.

There was other testimony as to his capacity during his sickness.

The caveator offered in evidence a bill of ne exeat filed by the Gaithers, claiming the whole estate in remainder, and praying a ne exeat against Mrs. Gaither; which bill, after it was served, was dismissed by complainants.

Wm. D. Luckier Ordinary of Newton County, proved that Dr. Gaither propounded the will for probate, and was the active agent in having the same recorded. Subsequently, Dr. Gaither brought Mrs. E. Gaither to the house of witness, where she was qualified as executrix.

In answer to the first cross-interrogatory, this witness testified as follows: "It is usual, where ladies have the management of estates, for some male friend to transact the most of the business, particularly the active, for them. Ladies, gent erally, are deficient in comprehending and understanding matters pertaining to the management of estates when they first undertake them. As far as my observation extends, they do generally rely on some male friend for assistance and direction. Mrs. E. Gaither said very little when she was sworn in; but from what little she did say, she seemed.to understand as much of the duties of her office as many others in a similar situation having no experience. It is a common thing for some male friend to attend to the business in the Ordinary's office for ladies, when they are about to undertake the management of estates. There was nothing done in this from what is frequently done in similar cases."

This was objected to as irrelevant. The Court overruled the objection; and to that decision plaintiff in error excepted.

Caveator then offered in evidence the letter from Bass to Adams, referred to in the testimony of Bass, for the purpose of using the same to impeach Bass. The Court rejected it as evidence, and this decision is assigned as error.

It was in evidence, that almost the entire estate owned by Brice T. Gaither he received from his marriage with his wife, which occurred about two years before his death. It was also proved, that testator's negroes had been working a piece of land which he got from his father and claimed as his own, but in his will the land is spoken of as the property of his father.

The Court charged the Jury as follows:

"That the movant in this cause is seeking to set aside the will of testator on two grounds, viz.:

1st. Want of testamentary capacity.

2d. Undue and illegal influence.

When the Jury retired, movant's Counsel stated to the Court that he had omitted one of the grounds of caveat. The Court offered to call the Jury back, stating that he would charge on that ground, and what his charge would be. Counsel not urging the recall of the Jury, it was not done. Error is assigned on this proceeding.

The Court also charged the Jury--

"Gentlemen, something has been said, in the argument of this cause, about the unreasonableness of this will. The Court charges you as law, that a man may make just such a will as he pleases, even if he thereby cuts out his wife and children; that whether this is such a will as you or I might make, under the circumstances, is no objection to the will, if testator had capacity to make the same."

The Court further charged the Jury-

"Gentlemen, I have no hesitancy in expressing to you the opinion, that the movant in this case gets the other one-half the property not disposed of by the will."

All which charges are now assigned as error.

Counsel for movant requested the Court to charge the Jury in the following words, which the Court refused to charge-- 1st. "That if the Jury shall find, by the evidence, that the testator was not able to criticise, accurately, the terms and provisions of the will, or the estates created thereby; yet, understanding merely that he was making a will, that the testator did not have sufficient testamentary capacity."

2d. "That if the Jury shall find said facts to be true, the will must be set aside, unless the evidence shows that the testator gave instructions in the presence of witnesses as to how he wished his property disposed of, and the mere reading of the will over to the testator, after it was written, and his assent to it, without more, does not do away with the necessity of instructions, especially if the Jury shall find that in addition to the inability of the testator to discriminate as to the contents of the will, that the will was prepared by the father of testator, who naturally had the confidence of testator, and the children of which father took estates under the will."

3d. "If the Jury shall find that the testator gave no instructions as to the contents of his will, in the hearing of the witnesses, that it is not sufficient to sustain the will, that it was read over to him, unless he understood the contents of the will."

Which 3d charge the Court gave to the Jury, but added as

follows:

"That if the Jury shall believe, from the evidence, that the will was read to testator, and he had capacity to make the same, he is presumed to have known its contents."

Counsel for movant assigns as error said charges and refusals to charge, and the words added to the request of Counsel for movant.

Cone; Wingfield; Adams, for plaintiff.

Nisbet; Davis, for defendant.

By the Court.— Benning, J., delivering the opinion.

The paper admitted to probate as the will of Brice T. Gaither was in the following words:

"Georgia, Newton County:

I, Brice T. Gaither, of the State and County aforesaid, declare and publish the following to be my last will and testament:

I desire, in the first place, that all my debts be paid as soon as it can be conveniently done.

Secondly. That should there be born unto me a posthumous heir, or heirs, that in that event, my estate be equally divided between my wife, Elizabeth Gaither, and said heir or heirs; but should no heir be born of said wife unto me, that my wife have a lifetime interest in the whole estate; but at her death, one-half of said estate I bequeath...