Shaw v. Fehn

• Decision Date: 07 October 1943
• Docket Number: 14638,14649.
• Citation: 27 S.E.2d 406,196 Ga. 661
• Parties: SHAW v. FEHN et al. FEHN et al. v. SHAW.
• Court: Georgia Supreme Court

27 S.E.2d 406

196 Ga. 661

SHAW v. FEHN et al.

FEHN et al. v. SHAW.

Nos. 14638, 14649.

Supreme Court of Georgia

October 7, 1943

Syllabus by the Court.

1. Where a caveat to probate of a will is filed on the grounds of undue influence, alleging only that testator 'was moved thereto by undue influence and persuasions over him by' a named party, the propounder, by appropriate demurrer, is entitled to be put on notice of facts relied on to constitute the undue influence. Where there is no amendment curing this defect, and the trial court overrules such demurrer, this court has no alternative but to reverse the judgment.

2. Where a caveat to the probate of a will is based on the grounds of mental incapacity or undue influence, and in the trial it is sought to establish the unreasonableness of the will by showing that the real estate thereby disposed of came into decedent's possession by the will of another person proof

of such facts must be in conformity with the 'best-evidence' rule under the Code, § 38-203.

Accordingly where the caveator introduced the will of another person, to show that certain real estate owned by the testator was derived from that source, in designating and specifying such property it was erroneous for the court to admit oral testimony that the property so acquired (describing it) had been 'transferred' to the testator.

3. Where an executor propounded an alleged will for probate in solemn form, and the only issue was devisavit vel non, a ground of caveat alleging that the will was void because the principal legatee was an alien enemy was properly stricken.

4. The case being remanded for another trial, we make no ruling on the sufficiency of the evidence.

Gleason & Painter, of Rossville, and Shaw & Shaw, or Lafayette, for plaintiff in error.

McClure & McClure, of Chattanooga, Tenn., and J. E. Rosser, of Lafayette, for defendants in error.

ATKINSON Justice.

A petition to probate in solemn form the will of Martin Fehn was filed in the court of ordinary of Walker County. Three legatees were named in the will, his wife Magdelena, and his two sons Joseph and Michael. To Joseph, the older son, he gave one dollar; to Michael, the younger son, he gave one half of his money in banks; and to his wife the rest of his property. The two sons filed a caveat as follows: (1) 'For that the said Martin Fehn at the time of making said pretended will was not of sound mind and disposing mind and memory.' (2) 'For that the said Martin Fehn did not execute the said pretended will freely, voluntarily, but was moved thereto by undue influence and persuasions over him by Magdelena Fehn; and it is therefore not his will.' To this caveat the propounder demurred as follows: (a) 'That the caveat is insufficient and fails to allege any facts sufficient in law or in equity to constitute undue influence.' (b) 'Said caveat is insufficient in that it fails to specifically set forth how and what manner the deceased was unduly influenced in the execution of said will; and it is further defective in that it fails to allege any facts setting forth just what persuasion the wife of the deceased, Magdelena Fehn, exercised over the deceased.' (c) 'Because it is not alleged when the alleged undue influence and persuasion was exercised by the said Magdelena Fehn over the deceased.' After a hearing the ordinary admitted the will to record as proved in solemn form, and the caveators appealed. The judge of the superior court overruled the demurrer to the caveat, and the propounder excepted pendente lite.

1. The court erred in overruling the demurrer to the caveat. Where a caveat to probate of a will is based on the ground of undue influence, the propounder, by appropriate demurrer, is entitled to be put on notice of facts relied on to constitute the undue influence. Field v. Brantley, 139 Ga. 437(3), 77 S.E. 559; Stephens v. Hughey, 174 Ga. 561(3, 4), 162 S.E. 915; Baucum v. Harper, 176 Ga. 296, 168 S.E. 27; Grover v. National City Bank of Rome, 179 Ga. 279, 175 S.E. 555; Peavey v. Crawford, 182 Ga. 782, 187 S.E. 13, 107 A.L.R. 828; Griffin v. Barrett, 183 Ga. 152, 164, 187 S.E. 828; Dingler v. Cumby, 189 Ga. 182, 184, 185, 5 S.E.2d 753. The basic rules of pleading and practice upon this subject are mandatory, and the failure to meet the demurrer by amendment setting forth substantial facts relied on requires a reversal. Mayor, etc., of Eastman v. Cameron, 111 Ga. 110, 36 S.E. 462; Western Union Telegraph Co. v. Griffith, 111 Ga. 551(3), 36 S.W. 859; Warren v. Powell, 122 Ga. 4, 49 S.E. 730; Cagle v. Shepard, 1 Ga.App. 192, 57 S.E. 946. While ordinarily nothing beyond the contents of the pleadings will be looked to in passing on a demurrer, yet, as pointed out in a case very similar to the instant case, the error in overruling this demurrer would subsequently have been rendered harmless had the judge at the trial eliminated the issue of undue influence from the jury; but he did not do so. See Boland v. Aycock, 191 Ga. 327(3), 12 S.E.2d 319. This case well illustrates the necessity for maintaining proper rules of pleading. The caveators were not required to set forth any facts which constituted undue influence on the part of the wife, Magdelena Fehn. The record of the testimony contains no evidence of undue influence which would have authorized a verdict based thereon, and the judge charged the jury fully upon this subject. Two grounds, incapacity and undue influence, were submitted, and the jury returned a verdict for the caveators. We cannot say what effect the submission of the law of undue influence to the jury had upon their verdict. Yet had the caveators been required to set forth in their pleadings facts relied on to constitute undue influence, and if they had incorporated no more facts than were revealed in the evidence on this subject, then this ground of caveat based upon undue influence should have been stricken, and the case submitted on the sole ground of incapacity. By leaving this incomplete ground of caveat in the pleading, it had the effect of broadening and expanding the scope of the testimony beyond that permitted under the other ground of incapacity, and caused a charge of the court upon this subject; thereby injecting the issue of undue influence in the case where it had no proper place, and improperly commingling it with the issue of incapacity.

2. The special grounds of the motion allege error, (a) in the reception in evidence of a mutual will executed by the testator and his second wife, seeking to show the source of the property devised by the testator in the instant case; (b) in the reception of evidence to identify the property devised by the testator, as having been received by him through the mutual will, and (c) in the charge of the court as to the purpose in permitting the mutual will to be considered by the jury. An explanation of the family status might here be appropriate. The testator, Martin Fehn, had been married three times. His first wife, the mother of the two sons who were the caveators, died about 1902. In 1903 he married Louise Fehn, with whom he lived until she died on April 5 1938. On November 10, 1938, he married his third wife, Magdelena, who was the principal legatee under his will. During the trial caveators sought to establish the fact that part of the realty owned by the testator at the time of his death was acquired under the mutual will of his second wife; and the court permitted one of the caveators by testimony to designate the property so acquired, and the fact that such property had been '...