Jones v. Grogan

• Decision Date: 12 June 1896
• Citation: 25 S.E. 590,98 Ga. 552
• Parties: JONES et al. v. GROGAN et al.
• Court: Georgia Supreme Court

25 S.E. 590

98 Ga. 552

JONES et al. v. GROGAN et al.

Supreme Court of Georgia

June 12, 1896

Syllabus by the Court.

1. There was no error in striking a ground of caveat to the probate of a will, alleging that it "was executed by [the testator] under a mistake of fact as to the conduct of [a brother and heir at law] towards [the testator], he having expressed himself as being unwilling to provide for his brother, who is old and feeble and poor, as the condition of [the testator's] estate would warrant, because he claimed that [this brother] had had a difficulty with him, when in truth and in fact there had been no difficulty." Especially is this so when an annuity, not merely nominal was bequeathed to the brother alluded to in this ground of caveat.

2. Nor was there any error in striking this ground of caveat after the same had been amended by alleging that the testator believed the brother in question owned property to the amount of $3,000, when in fact the brother owned only $300. An heir at law cannot, in any event, caveat the probate of a will on the ground that at the time of its execution the testator was misinformed or mistaken as to the amount or value of the property owned by such heir.

3. That the above-mentioned original and amended grounds of caveat were offered "for the purpose of showing that [the testator], at the time of executing said paper, was not of sound and disposing mind and memory," did not add to their validity; it appearing that another and distinct ground of caveat, alleging want of mental capacity to make a will was voluntarily abandoned by the caveators.

4. Undue influence to procure the execution of a will cannot be proved by the opinion of a witness that such influence was used, unless he testifies to relevant facts upon which his opinion is based.

5. The court properly refused to allow a witness to testify in a general way that there was something in the "manner or conduct" of certain persons named as beneficiaries in the will, and charged with having exercised undue influence in procuring its execution, evidencing that the testator was under their influence; it not being stated, in offering this testimony, what was the "manner" or the "conduct" sought to be shown, or that the same related to matters occurring in the presence of the testator.

6. If in the present case, there was any error in rejecting evidence of declarations alleged to have been made by such persons as to what they could or would induce the testator to do with respect to matters in no way connected with the testamentary disposal of his estate, it was not error which would require, or even justify, the granting of a new trial; this evidence, if admissible at all, being of little probative value, and the evidence as a whole showing clearly that the execution of the will was the free and voluntary act of the testator.

7. Declarations of the testator, apparently free and voluntary, and not made under the restraint of another, tending to show that the paper propounded as his will was prepared in accordance with his wishes, and that he was satisfied with it, are, when the paper has been attacked on the ground that its execution was procured by undue influence, admissible in evidence to show that it was his true last will and testament; but his declarations to the contrary, for the purpose of invalidating the paper as a will, are not admissible.

8. In view of the evidence, and of the fact that the general ground of caveat alleging want of testamentary capacity was abandoned, there was no error in charging the jury, "The issue in this case is narrowed to the sole one of undue influence, except so far as mental weakness demonstrates the susceptibility to such influence."

Error from superior court, Elbert county; Seaborn Reese, Judge.

Caveat filed by J. B. Jones, Sr., and others, against the probate of a paper purporting to be the last will and testament of George W. Dye, deceased, propounded by John H. Grogan and others, executors. From a judgment in favor of the will, caveators bring error. Affirmed.

Jos. N. Worley, Wm. D. Tutt, H. J. Brewer, and W. M. & M. P. Reese, for plaintiffs in error.

J. P. Shannon, W. M. Howard, Geo. C. Grogan, and P. P. Proffitt, for defendants in error.

LUMPKIN J.

A paper purporting to be the last will and testament of George W. Dye was propounded for probate in solemn form, and a caveat was filed by some of his heirs at law. The case was tried on an appeal to the superior court from the court of ordinary, and resulted in a verdict in favor of the will.

1. One of the grounds of the caveat was that the paper was executed under a mistake of fact as to the conduct of Martin Dye, a brother of the testator; the caveat declaring that George W Dye had "expressed himself as being unwilling to provide for" this brother as the condition of the testator's estate would warrant, "because he claimed that [this brother] had had a difficulty with him, when in truth and in fact there had been no difficulty." By reference to the will, it appears that the testator directed his executors to invest $1,000, and pay the interest thereon annually to this brother during the natural life of the latter. The caveat fails to declare at what time George W. Dye expressed an unwillingness to provide for his brother, or when he made the "claim" that there had been a difficulty between them. Nor is there any distinct allegation that, but for the testator's belief in the supposed difficulty, any other or further provision than that which the will actually contains would have been made for Martin Dye. For aught that appears, whatever the testator said on this subject might have been months, or even...