Penniston v. Kerrigan
| Decision Date | 12 December 1924 |
| Docket Number | 4440. |
| Citation | 125 S.E. 795,159 Ga. 345 |
| Parties | PENNISTON v. KERRIGAN. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The court erred in sustaining a demurrer to that ground of the caveat to the will which alleged that the will was void because of undue influence exercised upon the mind of the testator, which substituted the will of another for that of the testator. The allegations in this ground of the caveat were not merely conclusions of the pleader. Sufficient facts are alleged which, if true, and which must be accepted as true with reference to the demurrer, to set aside the will.
The court did not otherwise err in ruling on the demurrer to the caveat.
The court having erred in striking the ground of the caveat alleging undue influence, the trial of the case thereafter was nugatory, and no ruling will be made upon the errors alleged to have been made as contained in the grounds of the motion for a new trial.
Error from Superior Court, Floyd County; Moses Wright, Judge.
Application by M. A. Kerrigan for the probate of the will of Joel Branham, deceased, to which Corine Penniston filed a caveat. Judgment for the propounder and against the caveat, and caveatrix brings error. Reversed.
The will of Joel Branham, executed April 24, 1920, so far as material here, bequeathed to his daughter Georgia Corine Penniston one United States Liberty bond for $1,000, or its value in money, and devised to his only other daughter Jessica C. Appleton, "all the rest of my estate real and personal." A codicil executed January 25, 1921, provided that, in the event testator should dispose of any of certain bonds held by him, the legacy to Mrs. Penniston should be reduced to $500, and that in the event Mrs. Appleton should die before the testator died, the whole estate, except the legacy to Mrs. Penniston, should go to the two daughters of Mrs. Appleton, now Mrs. Kerrigan and Mrs. Randolph. A second codicil, executed on August 22, 1921, restored the provision of the original will that Mrs. Penniston should receive a Liberty bond for $1,000 or its value in money, and named as executrixes Mrs. Kerrigan and Mrs. Randolph. The executrixes named by the original will were Mrs. Appleton, Mrs. Kerrigan and Mrs. Randolph. This codicil provided: "In all other respects I confirm my said will as my last will and testament."
Upon the application for probate of the will in solemn form Mrs Penniston filed a caveat upon the grounds, after amendment (1) The will and codicils were not executed freely and voluntarily, but said Branham was moved thereto by undue influence and persuasions over him by his daughter, Mrs. Jessica Appleton, and his granddaughters, Mrs. Kerrigan and Mrs. Randolph. (2) Said will and codicils are void, because Mrs. Appleton, Mrs. Kerrigan, and Mrs. Randolph were guilty of fraudulent practices upon testator's affections and sympathy, and were also guilty of misrepresentations to the injury of the caveatrix. (3) Said will and codicils are void, because they were executed under a mistake of fact as to the acts and conduct of the caveatrix. (4) The will offered for probate is not the will of said Branham, because he revoked the same, and endeavored to destroy the same. The ordinary admitted the will to probate, and Mrs. Penniston took an appeal to the superior court. The allegations of the caveat as amended are substantially as follows:
(1, 2) That in 1907 or 1908 there was pending between Mrs. Appleton and her husband a suit for divorce; that because of the strong resemblance of Mrs. Appleton to her mother, and the sympathy testator felt for her in her trouble, she obtained a strong hold upon the mind of testator; that, realizing this fact, Mrs. Appleton conceived the idea of depriving caveatrix of her rightful share in said estate, and began poisoning the mind of testator at a time when his fears and sympathies for her were strongly aroused, and proceeded deliberately and falsely to make to him wrongful and untrue charges against caveatrix, to accuse caveatrix of having no love or affection for testator, and of being undutiful and unworthy of his consideration, of having aided or tried to aid the husband of Mrs. Appleton in the divorce proceedings between them; that Mrs. Appleton falsely and untruthfully represented to testator that she and her two daughters alone were truly devoted to him, and were dutiful, and were alone entitled to consideration from him; that these acts and efforts were continued by Mrs. Appleton until her death about the latter part of 1920 or early part of 1921, and culminated in the making of the will mentioned; that up to the time of making said will it had been the desire of testator that his children should share equally in the distribution of his property, and he had in 1900 executed a paper intended as a will, leaving the property to them equally; that it was only after testator had become old and feeble and his mind had been constantly and continually harrowed for many years by the misrepresentations of Mrs. Appleton that she succeeded in substituting her will for testator's wishes; that the influence of Mrs. Appleton continued, after her death, to have undue effect upon testator, whose mind had been deeply and wrongfully impressed with said untrue ideas, thoughts, and opinions which Mrs. Appleton wished testator to have concerning caveatrix; that it was under this influence, and the influence of Mrs. Kerrigan and Mrs. Randolph, who continued the tactics of their mother, Mrs. Appleton, after her death, and reiterated her misrepresentations concerning caveatrix that the two codicils to testator's will were executed; that the same did not represent his wishes, but the substituted will of Mrs. Appleton and her two daughters.
(3) That the mistake of fact on the part of testator as to the conduct of caveatrix consisted in his belief, instilled by the misrepresentations of Mrs.
Appleton Mrs. Kerrigan, and Mrs. Randolph, that caveatrix did not love testator as a...
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