Howard v. Obie
| Decision Date | 17 May 1940 |
| Docket Number | 13284 |
| Citation | 9 S.E.2d 666,190 Ga. 394 |
| Parties | HOWARD et al. v. OBIE. |
| Court | Georgia Supreme Court |
Rehearing Denied June 14, 1940.
Syllabus by the Court.
Where the sole question before the jury on an issue of devisavit vel non is whether or not the testatrix had mental capacity sufficient to make a will, and where the propounders introduced the three subscribing witnesses and several others, all of whom gave testimony tending to show such mental capacity, and where the propounders swore, but did not call to the stand, one of three legatees with whom the testatrix had lived for approximately three years immediately before her death, it was error to charge the jury that where 'a party to a cause who has evidence in his possession or control to refute testimony introduced by the other party, and does not introduce said evidence or testimony to refute said testimony of the said other party there arises a presumption against said party who does not introduce said testimony in his possession or control.'
To an application by Howard et al., the nominated executors, to probate the will of Pamela Louise Simmons, the granddaughter of the testatrix filed a caveat consisting of two grounds first, undue influence on the part of Maggie Gaines; second mental incapacity of the testatrix, a negro woman of about eighty years of age, who left no husband or living child, and whose only descendant was the caveatrix. The purported will left three parcels of real estate and certain personal property to her granddaughter, one hundred dollars to Wallace Robinson, who had been her chauffeur, and the remainder of her property to Maggie Gaines; the will further providing that out of the residue should be paid her funeral expenses. For approximately three years before her death she had been living in the house of Maggie Gaines, having taken up her residence in the Gaines home immediately after the death of a bachelor son, not the father of the caveatrix, with whom she had previously resided. Maggie Gaines was not related to her but the testatrix and the mother of Maggie had been intimate friends since Maggie's childhood. There was on the trial no contention that the instrument was defective in form, or that it was not properly executed. No evidence was offered to sustain that ground of the caveat setting up undue influence, the attack being directed solely to the ground that the testatrix was of unsound mind and mentally incapable of making a will. The three attesting witnesses testified, that in their opinion the testatrix was capable of making a will and was of sound mind; that the will was read to her, and the question was asked whether it was 'like she wanted it,' and that she replied in the affirmative. The scrivener testified to the same effect. The caveatrix swore herself and produced several witnesses, including the prior family doctor of the testatrix, all of whom testified that her mind had been weakened with age for a number of years, and that for several months she had no mind. The caveatrix produced at least one witness who testified that immediately after the execution of the will she came to the testatrix's bedside where she found her in a dying condition; that she never took medicine, drink, or food from that moment until she died, and never spoke a rational word and but few irrational words. The attending physician testified that a few hours before the time the will was executed the testatrix might have had testamentary capacity if you could keep her awake long enough for her to understand, but that he doubted keeping her awake long enough to understand a will. The only other witness introduced by the caveatrix who saw the testatrix on the night the will was signed was Lizzie Murray, who testified that she reached the home at about eleven o'clock, and swore: 'In my opinion she was insane when I got there at eleven o'clock on Monday night.' Dr. Thomas H. Slater testified that in his opinion the testatrix could not have had mental capacity 'on June 5, 1939, to make a will disposing of ten pieces of property;' but on cross-examination he said that he had not talked to her or been in her home or had any contact with her for more than three years before her death.
The judge in his charge withdrew from the jury that ground of caveat based on undue influence. The jury found in favor of the caveatrix. The propounders filed a motion for new trial on the general grounds, to which was added by amendment a special ground, as follows: 'The court erred, as movants contend, in charging the jury on the trial of the case as follows: 'I charge you that a party to a cause who has evidence in his possession or control to refute testimony introduced by the other party, and does not introduce said evidence or testimony to refute said testimony of the said other party, there arises a presumption against said party who does not introduce said testimony in his possession or control.' Movant contends that said charge was error, because the principle of law therein stated was not authorized by nor adapted to the evidence or the facts in the case on trial. Movants say in this connection, that, while one of the grounds of the caveat to the will was that it was not the will of Pamela Simmons because it was prepared by Maggie Gaines, one of the beneficiaries under the will, and that the said Maggie Gaines used undue influence upon the deceased, the caveatrix failed to introduce evidence to sustain this ground of the caveat, and the jury were specifically instructed by the court that the objections to the will on this ground were withdrawn by the court, and the jury were instructed that they were not to consider or regard such objections, as there was no evidence in the case to submit the matter of undue influence for decision by the jury. Said charge was requested by counsel for caveatrix, counsel contending to the court that said charge was applicable because movants failed to introduce Maggie Gaines as a witness, she being in court and sworn as a witness for movants. Movants contend that since the testimony on the question of whether or not the said Maggie Gaines had exercised undue influence upon the deceased in connection with the making of the will was insufficient to authorize the submission of the objections on this ground to the jury, it was not incumbent upon the propounders to call Maggie Gaines as a witness, and their failure to do so under these circumstances did not raise a presumption against them on the theory that they had in their possession or control evidence to refute testimony introduced by the other party.
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