Manley v. Combs

• Decision Date: 03 May 1944
• Docket Number: 14823.
• Parties: MANLEY v. COMBS.
• Court: Georgia Supreme Court

30 S.E.2d 485

197 Ga. 768

MANLEY v. COMBS.

No. 14823.

Supreme Court of Georgia

May 3, 1944

Rehearing Denied June 9, 1944.

Syllabus by the Court.

1. Where there is conflicting evidence as to testamentary capacity to make a will, and sufficient evidence to establish the absence of testamentary capacity, the verdict of the jury finding in favor of the caveat will not be set aside on the ground that there is lack of evidence to support the verdict.

2. A written document previously made and signed by a witness which is contrary to his testimony, may be introduced in evidence for the purpose of impeachment on the ground of contradictory statements; and this may be done though witness admits signing the document, and testifies that most of the statements contained therein are false, where the document contains other statements whose falsity is not admitted.

3. Where a written document containing a past history of the testator is admitted in evidence, though afterwards ruled out, and while in evidence an expert witness bases an opinion partly upon the contents of the document, and where the trial judge thereafter, in ruling out the document, also ruled out all evidence in reference thereto, such instructions to the jury were amply sufficient to withdraw from them any testimony as to an opinion based on the contents of the document.

4. In a contest over a will where the caveat is based upon mental incapacity, it is not error to refuse a timely request to charge that a person would be competent to make a will unless he is 'totally deprived of reason and understanding,' where the court charged: 'A person has testamentary capacity, * * * who understands the nature of a will, namely that it is a disposition of property to take effect after death, and who is capable of remembering generally the nature and value of the property subject to his disposition, and the persons related to him by ties of blood and affection, and who is capable also of conceiving and expressing an intelligent [intelligible?] scheme for the disposition of his property. If the testator has sufficient intellect to enable him to have a decided and rational desire as to the disposition of his property, this will be sufficient.'

5, 6. There was no error in the action of the trial judge, as alleged in ground seven and ground eight of the amended motion.

7. Where a witness, upon direct examination, gives testimony to which no objection is interposed, and subsequently, on cross-examination, his testimony indicates that what he testified on direct examination was illegal, an objection to the evidence given on cross-examination, without a motion to rule out that given on direct examination, was not sufficient to reach the testimony previously given on direct examination.

8. Where a caveator admits a prima facie case and assumes the burden of proof, he is not precluded from introducing evidence as to the conduct of the testatrix at the time the will was executed.

(a) An attorney at law may testify as a witness with respect to essential facts attending the execution of a will.

9. The overruling of an objection to evidence on the sole ground that it is irrelevant is not reversible error.

10. The exception to the portion of the charge, alleging it to be an expression of opinion by the court, is without merit.

Mrs. Elizabeth H. Combs died leaving an alleged will, which George T. Manley, the executor and principal legatee, offered for probate. W. B. Combs, the husband and sole heir at law of the testatrix, had been adjudged incompetent, and a caveat to the will was filed by Mrs. Sarah C. Johnson as his guardian.

The sole issue submitted to the jury was the question of the competency of the testatrix to make a will. The jury found in favor of the caveat.

The will was executed on May 10, 1935. The testatrix died in 1942. At the time of the execution of the will she was approximately sixty-five years of age, had been married three times, and divorced from her first two husbands, and was living separate from her third husband. She had no children.

A summary of the evidence relied upon to sustain the caveat may be more easily understood by prefixing it with the following statement: On October 28, 1935, forty-eight days after the execution of the will, the testatrix was adjudged insane by the court of ordinary of Bibb County, was sent to the Georgia State Hospital at Milledgeville and remained there until her death in 1942.

H. G. Flynt testified: Mrs. Elizabeth Combs was his aunt, his mother's sister. He knew her all of his life. After she married Mr. Combs, the witness was acquainted with him since 1913. Mr. Combs left her somewhere between 1925 and 1930. Since then she stayed at her home on Vineville Avenue. Had part of the house rented at times. During the five or six years before she was adjudicated insane he had occasion to see her. He noticed something unusual about her condition. She did a lot of funny things. She would call him up there, possibly would go into hysterics, possibly be half clothed, with nothing but a gown on. It came along gradually, it looked like it kept getting worse and worse. She was hard to get along with. She didn't get down to the subject at all on what she wanted to talk about. She would call him out there for one thing, and would forget about it and talk about something else--just jumped from one thing to the other. He knew that she lost her mind. She would have crying spells. She continued in this condition after she was sent to Milledgeville. He saw her at times during the summer and early fall of 1935. She had been bad for a long time. Lots of times when he would go out there she would not even be dressed, just have on a gown, come out in the front wearing a gown. When he would leave she would go into hysterics and would never know what she called him for. At the trial of a suit in Bibb superior court in 1934 between Mrs. Combs and Mr. Combs involving the ownership of the dwelling on Vineville Avenue, the witness, who was also a witness in that suit, testified that she pulled her chair up, and to his replies to every question she would say, 'that is a lie, it is a lie, it is a lie.' Mrs. Combs was insane when she tried those other cases; her mind was not good. She was a person of highly nervous temperament, was easily upset, would go off into tantrums or emotional disturbances of different kinds. As to money, that was her main trouble. She looked after her property pretty well and tried to get the best out of it. She moved down into a basement room in her house in order to rent all of the house. That was one reason why he thought she was crazy. No sensible person would have done that. It was nothing but a nasty, filthy place. The furniture down there is rotting. She didn't have any income except two pieces of property. She did take in sewing. When she settled the case with her husband she borrowed the money on the Vineville Avenue house. That was in the latter part of 1934. She dealt with people in a business way, arranged about rents, and looked after her affairs generally. After he testified against her in the suit with her husband, her manner towards the witness did not change. She called him several times to come out there and talk to her. Shortly before she was adjudged insane, she was sick. Mrs. Flynt, mother of the witness, stayed with the testatrix for about two weeks. She had been ill for some time. The witness had her sent to the Middle Georgia Hospital, where she stayed about ten days before being sent to the Georgia State Hospital at Milledgeville.

Mrs. S G. Ryle testified: She lived at 1311 Vineville Avenue next door to Mrs. Combs; had lived next door to her for twenty years, and saw her frequently. She was practically a mother to the witness, was a wonderful manager. The witness noticed a change in her mental condition as the years went by; this change took place about twelve or fifteen years before she finally went to Milledgeville, and occurred four or five years after Mr. Combs lost his position with the railroad. Soon after he lost his position the shock of it affected her. She never was the same any more. As to what manifestations or signs she gave of being abnormal, well, she seemed to think everybody was trying to steal from her. Then she was very emotional, and seemed to want to scandalize some one, like she just wanted to get something against them. She would watch the girls in the neibhborhood, sit out and see what boys came in at night. Mrs. Sarah C. Johnson, her stepdaughter, lived, when a girl, with Mr. and Mrs. Combs, but left before Mr. Combs did. She mistreated the girl a great deal. She had hot water in the house, but refused to allow the girl to draw her a tub of water, made her heat it in the basement and bring it up the steps. By the time she got one pail heated and came up with the next, it would be cold. She kept that child running up and down the steps. She would curse the child because she would not bring the water up. A year or two before she went to Milledgeville there was something unusual in the way she dressed. She would wear a nightgown, sometimes not that, just wrapped a sheet around her. 'She would come outdoors that way, on the sidewalk, put a chair on the sidewalk, in the middle of the house, sit rocking for hours, people would have to walk around her chair to get past her.' She used profanity in the worst form--very vile language. She got to using bad language in the last few years. She thought a lot of the witness's baby child, whom she had at her house often until she got the idea everybody was going to steal from her. 'As to how many times I would say that I saw her take a rocking chair and sit on the front sidewalk and wrap a sheet around her, I don't know how many...