Hawkins v. Hodges

• Decision Date: 10 February 1958
• Docket Number: No. 19972,19972
• Parties: Charles E. HAWKINS, Executor, v. Gerald HODGES et al.
• Court: Georgia Supreme Court

Page 16

102 S.E.2d 16

213 Ga. 837

Charles E. HAWKINS, Executor, v. Gerald HODGES et al.

No. 19972.

Supreme Court of Georgia.

Feb. 10, 1958.

Syllabus by the Court

For the reasons given in the body of the opinion, the trial court erred in denying the propounder's motion for new trial.

To a verdict and judgment of the Superior Court of Walton County, holding invalid the will of Leila Floyd, the propounder of the will filed his motion for new trial. To the judgment denying the motion the plaintiff in error excepts. The grounds for the caveat were that, at the time of the execution of the will, the testatrix was not of sound and disposing mind and memory and did not have sufficient mental capacity to make a valid will; and that she did not freely and voluntarily execute said will, but was moved thereto by undue influence and persuasion of Charles E. Hawkins, the propounder.

Orrin Roberts, Monroe, W. Dan Greer, Thomas O. Daivs, Decatur, for plaintiff in error.

D. M. Pollock, A. M. Kelly, Monroe, for defendants in error.

MOBLEY, Justice.

1. While the subscribing witnesses testified that, at the time of the signing of the will, the testatrix 'appeared to be of sound mind,' and 'that she looked of sound mind' and 'looked bright and alert'; that she did and said things that indicated she knew what was happening about her; that she was signing her will--there was conflicting testimony to the effect that she was not of sound mind and did not know what she was doing at the time she signed the will. Her physician, who saw her the day before and the day after the signing of the will and who had the benefit of the information contained in her hospital chart on the day she signed the will, testified: 'Knowing of her disease process and knowing that she was having considerable difficulty in breathing, I would doubt that she would be able to concentrate well on any particular subject. In this disease process, at this particular state, a person is quite concerned just with the act of breathing, and of course breathing is very important, and I doubt that she could concentrate clearly in the disposition of her property in making a will.' And also, 'Based on what is contained in the records of the hospital on that particular day, in my opinion she would not be able to concentrate to the extent that she would be able to understand the nature of her actions. What I was trying to imply was she would be so preoccupied with just the act of breathing, that she would care nothing of what was going on.' There witnesses, testifying in behalf of the caveators, saw the testatrix on the day she signed the will, in the morning before and in the afternoon after she had signed it. In the afternoon when these witnesses were there, she told them that she had that day made a deed to Gerald Hodges to his lot where he built his house, when she had in fact deeded this lot to him years before. They each testified that because of her advanced age and general physical condition, she being very weak, hard of hearing, barely able to see, having difficulty in breathing, all caused from the last stages of cancer, the things they saw and heard, in their opinion her mental condition was such that she would not have had any decided and rational desire as to the disposition of her property, and one of them testified that she did not think the testarix had sufficient mental ability to know what she was doing 'from the way she looked and all.' Other witnesses, who saw her the day before and the day after the signing of the will and who had been seeing her before she went to the hospital and during the fifteen days she had been in the hospital before signing the will and who saw her thereafter until her death, testified as to her condition, including general weakness, inability to breathe, almost total blindness and deafness; and it was their opinion that, on the day of the signing of the will, she did not have the mental capacity to know what she was doing. Clearly the evidence as to mental incapacity to make a will raised an issue for determination by a jury, and the evidence thereon was sufficient to support the verdict of the jury.

As to the issue of undue influence, alleged to have been exerted by the propounder upon the testatrix, the evidence showed that the propounder was the husband of the testatrix' deceased sister and the father of Miriam, a niece whom testatrix had partially reared and to whom she was devoted; that he and his family had lived in the home of testatrix; and that he occupied a confidential relationship to her, both as a member of the family and as a business advisor and consultant. The propounder testified that he got an attorney in Decatur to draft testatrix' will according to her instructions, and that he went back to the lawyer and had him draft another will, the one before us, making certain changes therein which he had suggested that testatrix make. His testimony was that the change made was to leave his daughter one-third rather than one-half of the property left by the will. There was evidence that the propounder stayed in the hospital constantly from the time the testatrix entered there on September 27 until the signing of the will on October 11; that he tried to prevent the caveators, a niece and nephew of the testatrix, and other relatives from staying in the room with her for any length of time; and that he remained with them while they were there and tried to discourage them from going to see the testatrix, but after the will was signed they saw no more of him. There was testimony that the propounder had sold timber off the land owned by testatrix, for which he never accounted; that a $1,200 note which she held against him, along with $15,000 or $20,000 in stocks and bonds, had disappeared and could not be found after testatrix died. And the caveators contended that the propounder had had inserted in the will item 4 which provided: 'I herewith make known that I have heretofore made disposition of my stocks and bonds and other real property,' for the purpose of confirming transfers of several parcels of real estate to his daughter, deeds to which had remained in the possession of testatrix until her death and had not recorded until thereafter, and to confirm the transfer and disposition of the stocks and bonds that had disappeared. 'The very nature of a will requires that it should be freely and voluntarily executed; hence, anything which destroys this freedom of volition invalidates a will; such as fraudulent practices upon testator's fears, affections, or sympathies, duress or any undue influence, whereby the will of another is substituted for the wishes of the testator.' Code, § 113-208. 'Forces so subtle, so multiform, so variant in each case in which they may be disclosed, and in which the proof of...