Others v. House

• Decision Date: 28 February 1849
• Docket Number: No. 46.,46.
• Citation: 6 Ga. 324
• Parties: William E. Potts and others, caveators, plaintiffs in error. vs. Alonzo P. House, executor, defendant.
• Court: Georgia Supreme Court

6 Ga. 324

William E. Potts and others, caveators, plaintiffs in error. vs. Alonzo P. House, executor, defendant.

No. 46.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1849.

Caveat on appeal, in Troup Superior Court. Tried before Judge Hill, November Term, 1848.

The issue in this case arose upon a caveat to the will of James Potts, senior, propounded for record. The grounds of caveat relied on were—1st. Incapacity to make a will. 2d. Undue influence exerted over him by a negro woman Charity. 3d. That at the time of making the will, he was unable to articulate any sentence so distinctly as to be understood by the person who wrote said writing, and that said negro woman, Charity, pretended to interpret for him, and directed the items of said paper purporting to be a will.

On the trial of the cause on appeal, in the Superior Court of Troup county, November Term, 1848, the Court ruled that the propounder in the will, was the plaintiff in the cause; to which ruling, counsel for caveators excepted.

The paper propounded, was witnessed by John E. Anderson, Blount C. Ferrell and Thomas T. House. By the first item the negro Charity and her two children were bequeathed to the pro-pounder, Alonzo P. House; and by the second item, Lucy, the mother of Charity, was manumitted or set free, as far as the laws of the State would permit. The other clauses of the will disposed of the balance of the testator\'s property, among his children and grand-children.

Ferrell, the subscribing witness, testified, among other things, that he wrote the will, and that he could not understand the testator distinctly, and relied entirely on the interpretation of the negro woman, Charity, and James Potts, jr., who alternately interpreted for him. After it was written, he read it over to the testator, and he assented to "it.

Anderson, another witness, agreed with Ferrell, as to the indistinctness of the articulation of the testator.

House, the remaining witness to the will, testified that his articulation was plain enough to be understood. All of the witnesses to the will agreed, as to the capacity of the testator, to make a will.

The counsel for caveators, offered in evidence the testmony of several witnesses, taken by commission, to prove the unsoundness of the mind of the alleged testator; to which counsel for pro-pounders objected, on the ground that they were not experts, and that none but experts, or the witnesses to the will, could testify as to the character and soundness of deceased's mind, and his capacity to make a will and attend to the ordinary affairs of life.

The Court sustained the objection, and counsel for caveators excepted.

The caveators offered in evidence the testimony of a physician of the Botanic practice, and also, Wm. Dougherty, Esq., an attorney of considerable and long practice, to the same point, which was excluded by the Court, on the same ground, and counsel for caveators excepted.

The Court also ruled out the testimony of sundry witnesses, to prove that the negroes of deceased, and especially Lucy and Charity, had, for many years, exercised influence over him. To which ruling caveators excepted.

The Court charged the Jury, "that to make a will valid, three facts must appear— 1st. That the instrument propounded, contained really the wishes and acts of the testator.

2d. That he had capacity to make a will; and,

3d. That he did it freely and voluntarily.

The law and practice of the Courts have laid down the oaths or affidavits to be taken by the witnesses to a will, to ascertain the existence of these facts. In this case, these affidavits have been taken by the witnesses showing these facts, and which must always be done before the paper can be declared the last will and testament of the deceased, and admitted to record as such. It is contended, on the part of the caveators here, that it has not been shown that the paper writing propounded in this case, is the dictation of James Potts, senior, the testator, but that so far as appears, it is the dictation of a negro woman named Charity, and of others who interpreted for the scrivener. On this point, it is the peculiar province of the Jury to determine, but it is the opinion of the Court, and I so charge you, that it is not necessary that the testator should convey to the scrivener his wishes in words, but that he may do so by motions and signs, provided they be not misunderstood, or even through an interpreter, for a man is not debarred the privilege of making his will because he has lost his speech. If he makes himself intelligible to the scrivener, it matters not how; and who the interpreter is, is matter of no consequence. If the witnesses attesting the will are not, (in the opinion of the Jury,) mistaken in the expressed wishes of the testator, and the Jury also believe, from the consistency of the instrument with common sense and with previously expressed determinations of the testator, founded on sensible reasons for his conduct, such instrument may be set up as a will, without the oath of the interpreter.

To apply these principles to the case before us: Mr.. Ferrell, one of the witnesses, and also the scrivener, testifies that he could, with difficulty, have understood some of the words the testator said, but he preferred to rely on the interpretation of the negro woman Charity, and James Potts, junior. Another witness, Mr. Anderson, testifies, I believe, that he did not understand anything the testator said.

But Mr. House testifies that he could understand all he said. If you believe that old man Potts conveyed his wishes by signs and motions, and through this negro woman and others who understood him, honestly interpreting to the scrivener, then, inthe opinion of the Court, it is sufficient evidence that it is the act of the testator. To illustrate what I mean, I will analogize this ease to that of a foreigner. I will suppose a German in our place, who cannot speak English, and who wishes to make a will. Vow, we have a citizen who speaks both languages, (Mr. Kener,) and it would be perfectly competent for this foreign gentleman to convey his wishes to the scrivener, and the witnesses to the will, through the medium of Mr. Kener, as interpreter, though Mr. Kener himself should not become a witness to the will, nor be called to testify on admitting it to probate. If then, in this case, you believe that these interpreters understood the testator, and interpreted honestly, (keeping in mind the testimony of House,) it was competent for the witnesses to receive his wishes, and this portion of the case would be sufficiently made out, (provided you be of opinion there was no misapprehension.) This is either the will of deceased, or of the negro, or of the negro and James Potts together, which you will judge. You will next determine the question of capacity.

The law does not recognise degrees in mind—does not look at its vigor, activity or strength, in the absence of any charge of foul play, but at its regularity. Whether weak by nature of reduced by disease or age, to any degree of feebleness, still, if it be regular, does not amount to disorder or derangement, it may make a will. The mind may be reduced, I cannot say how low, yet, if it peers at all above idiocy, disorder or derangement, and is capable of prompting and dictating, it is of sufficient capacity to make a will, in the absence of fraud or coercion. It may seem to be stupid, tropid and inactive at times, yet, if it does not amount to absolute fatuity and disorder in its action, but is still regular and retains the power of volition and dictation, it does not disqualify a man from making a will.

In this case, if there is any evidence that the mind of James Potts, senior, was at any time insane, it has escaped the ear of the Court, and the Court feels bound to charge the Jury, that it was incumbent on the caveators to establish incapacity, to a reasonable certainty, as the law presumes sanity."

On the question of influence the Court charged, that any person, negro or other person, could persuade another to make a will in their favor, by any fair and honest means, which did not amount to moral coercion—and this coercion must be producedby force, moral or physical, menaces, deceit or fraud, of some kind. The influence and persuasion, to vitiate a will, must so completely and fraudulently overpower the mind, as to prevent it from acting otherwise; must destroy its volition or substitute the volition of another. This influence must be established by the caveators, to a reasonable certainty, before the propounder can be required to repel the charge of its existence. In all the cases read by counsel for caveators, the influence alleged proceeded from the principal legatee in the will. In the case before us, there is no evidence that House ever exerted any influence over the testator; that alleged to have been employed by the negro, does not remedy the defect, and the cases are not strictly parallel. It is all-important, in all cases, that the first suggestings and promptings for drafting a will, should come from the testator, which was not true in the Shankey case. In this case, if the interpreter was instructed by the testator, and the interpreter gave it honestly to the scrivener, the testator, so far as the law presumes, is the first mover in the case.

The Court further charged the Jury, that it was a rule, in considering testimony of witnesses, that a witness who swore affirmatively to a fact, was to be believed before many who swore negatively; as in the case before us, those witnesses who testify that the testator could measure corn, take good care of his property, count interest and attend to his business, were to be believed in prefernce to those who testified that he could not do these things. The Court charged the Jury, as a further rule, that regard should be had to the relation of a witness to the parties, and the manner of testifying; and that the testimony of witnesses, of only equal...