Smith v. DuBose

• Decision Date: 13 June 1887
• Citation: 3 S.E. 309,78 Ga. 413
• Parties: SMITH and another v. DU BOSE and another, Ex'rs.
• Court: Georgia Supreme Court

3 S.E. 309

78 Ga. 413

SMITH and another v. DU BOSE and another, Ex'rs.

Supreme Court of Georgia

June 13, 1887

Appeal from superior court, Hancock county; LUMPKIN, Judge.

N. J. Hammond, Hill & Harris, Bacon & Rutherford, and R W. Patterson, for plaintiffs in error.

C. W Du Bose, W. M. & M. P. Reese, J. T. Jordan, and Reese & Little, contra.

HALL J.

In response to a notice served by the executors of David Dickson, late of Hancock county, deceased, on his heirs and distributees, to show cause why his will should not be proved in solemn form, a portion of them appeared and caveated the probate court on the grounds: (1) That the will was procured by the undue influence of Amanda Dickson and her mother, Julia Dickson, or one of them. (2) That it was procured by the fraud of said Julia and Amanda, in inducing said David Dickson to believe that said Amanda was his child, when she was not; and that her sons were the sons of Eubanks, when they were not. (3) That the whole paper is a scheme to carry into effect the last clauses of item 4, all of the seventh item, and all of the ninth item, relating to said Amanda and her said children, the alleged natural sons of Eubanks, which items are inconsistent with the laws, or contrary to the policy of the state, and therefore the whole paper is void as a will for this and for the reasons stated in the caveat and this amendment; that if the whole is not void, said parts are void for said reason. The other reasons stated in the original caveat of file were that the paper was not David Dickson's will; that he had not testamentary capacity to make a will; that it was made under the undue influence and improper control exercised over him by Amanda Dickson; that it was made under a mistake as to his heirs at law, and was not such a will as he would have made had he known the facts; because the paper was in its scheme and nature and tendency illegal and immoral, and contrary to the policy of the state and of the law, and destructive and subversive of the interests and welfare of society.

The will was admitted to probate by the court of ordinary; and from this judgment the caveators appealed. On the appeal trial, all question as to the capacity of the testator to make a will was abandoned. The other grounds of the caveat were those relied on to defeat the probate of the will. On this trial, as well as that before the ordinary the will was sustained, and a judgment was taken admitting it to probate and record.

The material questions discussed before this court were--(1) That the will was the result of the undue influence exercised by Amanda Dickson, one of the principal beneficiaries under its provisions, and her mother, Julia Dickson, upon the testator. (2) That it resulted from false and fraudulent representations made by Amanda and Julia, not only as to the paternity of Amanda, but of Amanda's children, it being insisted that Amanda was not the child of the testator, and that her sons, Julian H. and Charles G., were not the natural sons of the testator's deceased friend, Charles H. Eubanks. (3) That, in consequence of these facts, the will embodied a scheme of Amanda and Julia to carry out the same by virtue of the items and provisions in favor of Amanda and her children; that the scheme was inconsistent with law, and contrary to the public policy of the state; and if it did not render the whole paper void as a will, it did so at least as to the items or portions in favor of Amanda and her children, because of its tendency to promote illegal and immoral intercourse between Amanda and her alleged paramour, the said Eubanks, such intercourse being destructive and subversive of the welfare and interests of society.

The items of the will bearing upon these questions are the following: Item 4. "I give, bequeath, and devise to Julian H. Dickson and Charles G. Dickson, minor children of Amanda A. Dickson, and the natural sons of my deceased friend, Charles H. Eubanks, and to the survivor of them, in case either should die leaving no child or children, or representatives or representors of a deceased child or children, the two tracts of land in Hancock county, *** [describing] adjoining the land of Baxter, the Alexander place now occupied by said children and others, containing in all five hundred acres, more or less. I appoint Amanda A. Dickson, the mother of said children, the testamentary guardian of the property given to her children by this item of my will, and my executors are directed to turn over said property to her as such guardian, to be managed by her for them till they, or either of them, marry or come of age, at which time, as the case may be, said property may be divided, share and share alike. If both of said children should die before marriage or attaining lawful age, leaving no child or children, or the representative of a deceased child surviving, then the property in this item shall go to Amanda A. Dickson, their mother." Item 7. "I give, bequeath, and devise all the rest and residue of my estate, not expressly disposed of by this will otherwise, as well all I now own, as all I may hereafter accumulate up to the time of my decease, including lands, live stock, farming implements, crops on hand and crops growing, railroad stock, bonds, notes, accounts, and everything else of value I may own at my death, to Amanda A. Dickson, of Hancock county, now living with her mother near my plantation, for and during her natural life, free, clear, and exempt from the marital rights, power, control, or custody of any husband she may have; with full power to her, the said Amanda A. Dickson, without the aid or the interposition of any court, to sell said property, and convey the same, and to reinvest the proceeds of said sales in other property, or in good security, to be held by her for her life as aforesaid. I charge the property bequeathed by this item of my will with the support and education of the children of the said Amanda A. Dickson, as well those hereafter to be born as those now living; their support to be ample but not extravagant, their education to be the best that can be procured for them with a proper regard for economy; all of which I leave to the sound judgment and discretion of the said Amanda A. Dickson, without any interference from any quarter. As either of the children of the said Amanda A. Dickson, born or to be born to her, come of age or marry, I direct her to set off to such child so marrying or coming of age, a portion of said property, she to determine, in her unlimited discretion, what property and how much shall be set off, with only this instruction, that the amount must not be so great as to defeat or imperil my purpose to provide for her during life, and for her children, as well those to be born hereafter as those now in life. Upon the death of the said Amanda A. Dickson, I give, bequeath, and devise what may remain of the property embraced in this item of my will to the children of the said Amanda A. Dickson, and the representatives of any deceased child, share and share alike, such representatives taking per stirpes and not per capita." The ninth item named the propounders as his executors, directed them to prove his will in solemn form, and to turn over to said Amanda all the property given her for life, and requested them to see to it while they live "that Amanda A. Dickson and her children are protected in their person and their property, under the laws, so far as they may be able to do so;" and gave each of the executors $2,500 in lieu of commissions.

1. We shall consider, first, whether this will, in the various items mentioned above, and according to its scheme, and the proof had upon that subject, can be deemed contrary to public policy and void; and whether that question was clearly and properly submitted to the jury under the charge of the court and the testimony in the case. To do so intelligently, it will be necessary to state accurately the several charges of the court upon that subject, to which the caveators excepted and these will be found in the eighteenth, twenty-second, twenty-fourth, twenty-fifth, and twenty-eighth grounds of the motion for new trial, which are as follows: "(18) The court erred in charging the jury at request of counsel for the propounders as follows: 'There is no public policy in Georgia which prevents colored persons from taking property under a will,' without more, and without coupling to that the consideration of illicit intercourse, which may have produced said will." "(22) At request of counsel for caveators the court charged jury that, 'If Amanda was the bastard child of David Dickson, begotten in this state, of a negro slave, prior to the late emancipation, he was under no obligation to support or provide for such child prior to such emancipation, except as a slave, if his slave, but then only while she was his slave;' and was further requested in writing to charge: 'No obligation was upon David Dickson, if he so begot said slave, to support or provide for her after emancipation, or, if any such obligation existed, it ceased upon her becoming 21 years old,' and the court so charged, leaving out the words 'or if any such obligation existed it ceased upon,' and inserting 'and' after emancipation, and then refused to charge, as requested in writing: 'If this will was made after such majority, and Amanda was such bastard of this testator, the parts giving this property to her are void, because contrary to public policy.' The refusal of this request was error." "(24) The court erred in refusing to charge, as requested in writing by the counsel for the caveators: 'If the jury believe from the evidence that this will sought to be propounded is contrary to the policy of the state of Georgia, then the jury would...