Hobson v. Moorman

• Decision Date: 19 December 1905
• Citation: 90 S.W. 152,115 Tenn. 73
• Parties: HOBSON et al. v. MOORMAN.
• Court: Tennessee Supreme Court

90 S.W. 152

115 Tenn. 73

HOBSON et al. v. MOORMAN.

Supreme Court of Tennessee.

December 19, 1905

Appeal from Circuit Court, Fayette County; R. E. Maidun, Judge.

Petition by H. C. Moorman, as executor of the will of Jane B. George deceased, to establish the same, to which Dan Hobson and others filed objections. From a decree sustaining the will contestants appeal. Affirmed.

Bullock & Timberlake and Chas. A. Stainback, for appellants.

T. K Riddick, T. J. Flippin, Wm. M. Mayo, and C. W. Crawford, for appellee.

McALISTER J.

This is an issue of devisavit vel non from the circuit court of Fayette county. The will in controversy was executed by Mrs Jane B. George, on the 23d day of October, 1899, and is attacked upon the ground of undue influence and want of testamentary capacity. The contestants are Lizzie Hobson John D. Boyd, and Harry Boyd, family servants of the testatrix, and legatees under a prior will executed on the 29th day of June, 1898. The proponent of the present will is H. C. Moorman, who was appointed administrator cum testamento annexo. The case has been tried several times in the circuit court and once in this court, at the April term, 1902. On the first trial in the circuit court, January term, 1901, a verdict was rendered against the validity of the will. A new trial was granted as to the beneficiaries in said will, except Mrs. Goosman; but as to her a new trial was refused, upon the ground that the evidence showed that she had exercised an undue influence over the testatrix in procuring a testamentary benefit. On the second trial at the May term, 1901, the validity of the will was sustained as to the remaining beneficiaries. On appeal to this court, the judgment below was reversed and the cause remanded, upon the ground that the paper writing was indivisible, and there should be a new trial touching the validity of the entire instrument. On the remandment the case was again tried at the March term, 1903; the jury disagreeing and a mistrial being entered. The last trial, in November term, 1904, resulted in a verdict sustaining said paper writing as the last will and testament of Mrs. Jane B. George. The contestants appealed and have assigned numerous errors. As already stated the will in controversy was executed on the 23d day of October, 1899, and is as follows:

"I, Jane B. George, of Somerville, Tennessee, do make and publish this as my last will and testament, hereby revoking and making void all others by me at any time made.

"First--I direct that my funeral expenses and all debts, if any I owe, be paid as soon after my death as possible, out of any money that I may die possessed of.

"Second--I will, devise and bequeath to George Goosman, of Somerville, Tennessee, one thousand dollars in money.

"Third--I will, devise and bequeath all the balance of my property, real, personal and mixed, of every character and description, wherever situated, to the following named persons, to wit: To Mrs. Lizzie Riley, John H. McElwee, Louis McElwee, Mrs. Mattie F. Goosman, the children of Mrs. Emmaline Ervin and the children of Jerome McElwee, the children of each taking one share, it being my intention that my entire estate, after paying burial expenses and debts and legacy provided for in item second, shall be equally divided, share and share alike, among the persons named, that is, one share to Mrs. Lizzie Riley, one share to John H. McElwee, one share to Louis McElwee, one share to Mrs. Mattie F. Goosman, one share to the children of Mrs. Emmaline Ervin, one share to the children of Jerome McElwee, thus making six equal shares.

"Fourth--I do not appoint any executor; the court can appoint some one to execute this will and require proper bond and security.

"In witness whereof, I do, to this, my will, set my hand, this 23d day of October, 1899.

"Jane B. George.

"Signed and published in our presence, and we have subscribed our names hereto, as witnesses, at the request of the testatrix, in her presence and in the presence of each other.

"This Oct. 23rd, 1899.

"H. C. Moorman.

"Wm. B. Granberry."

This latter will was essentially different from the first will, executed on the 29th of June, 1898. In the first will, the testatrix devised to her nephew, John Harvey McElwee, all her real estate and household goods, together with a specific legacy of $4,500, and he was also made residuary legatee. The last will devised to him an undivided one-sixth interest in the estate. In the first will the testatrix bequeathed to Lizzie Hobson a legacy of $250, while under the last will she was entirely excluded. John D. Boyd and Harry Boyd, under the first will, were bequeathed the interest on $250 each annually, while the last will gave them nothing. In the first will Rev. J. F. Lloyd was left a legacy of $250, while he is not mentioned at all in the last will. The first will gave to Mrs. Lizzie Riley, niece of the testatrix, $1. Under the last will she takes an undivided one-sixth interest in the estate, after deducting the legacy to George Goosman. Louis McElwee, a nephew, under the first will was given the sum of $1, while under the last will he takes an undivided one-sixth interest in the estate, after deducting the legacy. Under the first will the testatrix made no bequest whatever to Mrs. Mattie Goosman, while under the last will she is given an undivided one-sixth interest in the estate, after deducting the legacy given to her son George. The first will gave to Jimmie and Lizzie Ervin, children of Emmaline Ervin, a legacy of $500 each, while the last will gives them an undivided one-sixth interest in the estate, after deducting George Goosman's legacy. In the first will John Harvey McElwee was nominated executor to act without bond, while no appointment of an executor is made in the last will.

These are the cardinal and differential features of the two wills. It is said in the brief of counsel for the proponent, that the real contestant of the present will is John Harvey McElwee, although nominally Lizzie Hobson and John and Harry Boyd, legatees and family servants of the testatrix, are the contestants of record, who are prosecuting this appeal in forma pauperis. The theory of contestants is that the will executed on the 29th of June, 1898, was the real testamentary act of the testator, executed while in the possession of all of her intellectual faculties and entirely removed from any dominating influences. It is said that, in executing the first will, she took counsel of her spiritual adviser, Rev. J. F. Lloyd, and of her regular attorney, Hon. E. R. Scruggs.

But it is further said that, shortly after the execution of the codicils to the first will, in April and September, 1899, Mrs. George sustained a very serious fall, which confined her to her bed, and that while so prostrated she fell under the influence of Mrs. Goosman, Mrs. Riley, and others, who induced her to make the second will, which did not represent her testamentary wishes, but in reality was the testament of those exerting this undue influence. It is, moreover, contended that when the first will was executed Mrs. George was of sound mind and disposing memory, while at the date of the execution of the second will she was in a state of senile dementia, which rendered her incapable of performing a testamentary act.

On the other hand, the theory of the proponent is thus stated in the language of his counsel, which we quote from his brief as follows:

"Up to June, 1898, Mrs. George had intended to bequeath her property to Mrs. Goosman, her son, George Goosman, and to the nieces and nephews of Mrs. George herself. Mrs. Goosman was the second cousin and adopted daughter of Mrs. George. Their relations were as intimate and friendly as they could have been, until June, 1898, when Mrs. George was led to believe that Mr. and Mrs. Goosman tried to poison her in order to get her property. Under the influence of this belief, she made a will, on June 29, 1898, disposing of her property in an entirely different way from what she had previously contemplated. There is no pretense that this belief was well founded, but Mrs. George persisted in it for several months. Proponent's theory is that she was encouraged in this belief by Mrs. Hazlewood, Lizzie Hobson, and John Harvey McElwee, but they deny it. Early in the year 1899, however, she became convinced that she had been poisoned, and immediately began to change her will. She added one codicil in April, 1899, and one in September, 1899. These codicils changed the will so much that, to use her own expression, she 'hardly knew what was in it.' So she finally resolved to make a new will altogether, which she did on October 23, 1899. This contained practically the same disposition of her property which she intended to make prior to the poisoning episode, and is the will now under contest."

We shall not, at this point, enter upon an examination of the evidence in support of these respective theories, but will have occasion, in the consideration of the assignments of error on the admission and exclusion of evidence, to make an additional statement of the facts. We will say, however, that our examination of the record has satisfied us that the verdict of the jury and the judgment of the court is supported by material evidence.

The first assignment of error made by contestants is based upon the action of the trial judge in excluding evidence of the declarations of the testatrix, made prior to the execution of the will in issue, for the purpose of establishing undue influence. On this subject the court charged the jury as follows:

"Gentlemen of the jury, during the progress of this trial the court permitted the parties to introduce proof of declarations alleged to have been made by Mrs.

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