Slaughter v. Heath
| Decision Date | 27 February 1907 |
| Citation | 57 S.E. 69,127 Ga. 747 |
| Parties | SLAUGHTER v. HEATH. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
A person has testamentary capacity who understands the nature of a testament or will, viz., that it is a disposition of property to take effect after death, and who is capable of remembering generally the property subject to disposition and the persons related to him by the ties of blood and of affection, and also of conceiving and expressing by words written or spoken, or by signs, or by both, any intelligible scheme of disposition. 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 suffice.
If, on the trial of an issue formed by a caveat to the propounding of a will, the judge fully and fairly charges the law on the subject of testamentary capacity, it is not necessary that he should, on request to charge, repeat and reiterate in different forms or modes of expression what has been already sufficiently given.
Where the court, in defining testamentary capacity, contrasted weakness of intellect with imbecility, and was requested to define that term to the jury, but declined the request so made, and afterwards granted a new trial, although one had previously been granted, and where this ground, coupled with others in the motion for a new trial, was sufficient to authorize its grant, this court will not reverse such ruling.
Where counsel for propounders of a will invoked a charge to the effect that a testator might bequeath his entire estate to strangers, to the exclusion of his wife and children, there was no error in adding that in such a case the will should be closely scrutinized, and, upon the slightest evidence of aberration of intellect, probate should be refused. But where the court went further, and gave in charge as a qualification of the request other parts of section 3258 of the Civil Code of 1895, not applicable, including references to collusion fraud, undue influence, and unfair dealing, and where he afterward granted a new trial on this, among other grounds some of which also had merit, such grant will not be reversed.
An inquisition of lunacy and a return that the person sought to be declared insane or an imbecile was not so, with an entry of the ordinary confirming such return, is not conclusive evidence against third persons, who were not parties to the proceeding, although notified thereof as next of kin.
A nonexpert witness can state all the facts he knows in relation to the testator bearing on the state of his mind and the nature of his acts, and may give his opinion, based on such facts, as to the condition of the testator's mind but it is not competent to ask him such questions as to state whether, in his opinion, the testator had a decided and rational desire when he made the will, or whether his desires were like the ravings of a madman or the pratings of an idiot, or a childish whim.
Where a female witness testified that a testator whose capacity was in question had applied to her to write his will, and she had refused, it was competent, as explanatory of his act, to show that she had drawn several wills, if that fact had been communicated to him; but it was not competent for her to state generally that this was known to him.
In civil cases, questions of law are to be argued exclusively to the court, and not to the jury. There is no rule which requires the jury to be sent out while such an argument is in progress before the court, or which declares that, in the course of an argument to the court, the law shall not be read in the hearing of the jury. But such matters must rest largely in the discretion of the presiding judge.
Upon the trial of an issue arising upon the propounding of a will and a caveat thereto, the burden in the first instance is upon the propounder of the alleged will to make out a prima facie case, by showing the factum of the will and that at the time of its execution the testator apparently had sufficient mental capacity to make it, and, in making it, acted freely and voluntarily. When this is done, the burden of proof shifts to the caveator.
A general interrogatory, which calls on the witness to state any other facts which benefit the propounders of a will as fully and particularly as if specially interrogated in relation thereto, is too indefinite to put the adverse party on notice as to the testimony sought, and also leaves the witness to decide what will be beneficial. On objection, such an interrogatory and the answer thereto were properly excluded; and this is true, although another part of the question might have been admissible if it had not been inseparably connected with the above-stated objectionable question, so as to form with it a single question.
Where a testator bequeathed to a daughter only $5, and in the will assigned as a reason therefor that her husband had not treated him justly, evidence to show the transaction between them or the conduct of the son-in-law in respect thereto, in so far as it was known to him, was admissible as tending to show what operated on his mind. If the son-in-law withheld money from him (whether rightfully or wrongfully), and this was known to him, it would be admissible, as throwing light on the reason assigned in the will.
So, for a like reason, evidence was admissible that the testator asked his son-in-law for a bond, to which he claimed title, and that the son-in-law, with an oath, replied that he would give it to the testator when he pleased.
An opinion of a nonexpert that a testator was not easily influenced, if relevant, was not admissible, without stating the facts on which such opinion was based.
Where it was sought to show the testator's sanity by proving the fact that he had written letters to one of his daughters, this could not be done by parol, without producing or accounting for the letters.
None of the other grounds of the motion required a new trial.
Error from Superior Court, Butts County; E. J. Reagan, Judge.
Action between S. P. Slaughter and O. P. Heath and others. From the judgment, both parties bring error. Judgment on main bill of exceptions affirmed; on cross-bill, reversed in part.
Reuben R. Arnold and Y. A. Wright, for plaintiff in error.
N. E. & W. A. Harris, T. J. Dempsey, and O. M. Duke, for defendants in error.
1-3. The motion for a new trial contained 22 grounds. It was granted on 5 of them. The others were overruled. Both sides excepted. It was a second grant of a new trial. Several of the grounds are based on refusals to charge as requested, to the effect that, in order to destroy testamentary capacity, there must be "a total deprivation of reason"; that to bring about that result the testator must be non compos mentis, and that the law defines a person non compos mentis to be "one wholly deficient in understanding, or who by grief, sickness, or other accident has wholly lost his understanding"; that he must be "totally deprived of his reason"; and that, "if his mind was not totally eclipsed or entirely extinguished, he had sufficient capacity to make a will." Did the presiding judge err in refusing to give these requests in charge? Various attempts have been made to establish some arbitrary test of testamentary capacity; but they have each had to be abandoned or modified as new combinations of facts arose in later cases. At an early date the English courts entertained the view that it was not required that one should be mentally perfectly sound in order to make a will, and that a delusion not of a kind to affect the will would not render it invalid. Dew v. Clarke, 5 Russ. 163. Then they seemed to incline to a narrower view. Waring v. Waring, 6 Moore, P. C. 341, 12 Jur. 947; Smith v. Tebbitt, 16 L. T. R. 841. Then they returned to their original position that testamentary capacity was not the same thing as perfect sanity. Banks v. Goodfellow, 39 L. J. Q. B. 237, 22 L. T. 813, L. R. 5 Q. B. 549; Smee v. Smee, L. R. 5, P. D. 84, 49 L. J. P. 8; Goods of Bailey, 31 L. J. P. 178, 4 L. T. 477; Murfett v. Smith, 57 L. T. 498. The American courts have generally held that perfect mental soundness did not furnish the test, but that there may be partial insanity, disconnected from and not affecting the making of the will, which would not render it invalid.
It has sometimes been sought to apply the same test as in criminal cases. But this will clearly not answer, since "criminal capacity involves primarily the ability to distinguish right from wrong; while testamentary capacity involves the ability to understand the estate to be disposed of, the proper objects of bounty, and the nature of the testamentary act." Page on Wills, pp. 108-111, § 94 et seq. It has been sometimes sought to compare capacity to contract with that to make a will. But the making of a contract with another party, where there is a consideration, a meeting of minds, an agreement to do or not to do some one or more things, may evidently involve a different amount of mental capacity from the making of a will, where the owner of property directs how it shall go after his death. Besides, it will be found that the courts have not always agreed in defining contractual capacity. Page on Wills, § 96; Gardner on Wills, 106. In some states there are statutes along this line. Our own Code declares: "An incapacity to contract may coexist with a capacity to make a will." Civ. Code 1895, § 3268. It has been said in an early authority ...
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