Spivey v. Spivey

• Decision Date: 06 September 1947
• Docket Number: 15918.
• Citation: 44 S.E.2d 224,202 Ga. 644
• Parties: SPIVEY v. SPIVEY.
• Court: Georgia Supreme Court

44 S.E.2d 224

202 Ga. 644

SPIVEY v. SPIVEY.

No. 15918.

Supreme Court of Georgia

September 6, 1947

Syllabus by the Court.

1. On the trial of an issue arising upon the propounding of a will and a caveat thereto, the burden, in the first instance, is on the propounder 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.

Under the law and the evidence in the present case, a finding in favor of the will was demanded, and the court erred in overruling the motion for new trial.

J. G Spivey died on November 14, 1946, leaving a will which was executed on May 14, 1946, and which was offered for probate in solemn form by his son, L. C. Spivey. By the will the testator directed that all his property be reduced to cash and then divided equally among his children, or their survivors. R. R. Spivey, a son, filed a caveat on the ground that the testator, at the time of making the pretended will was not of sound and disposing mind and memory. From a judgment by the court of ordinary in favor of the propounder, the caveator appealed to the superior court, where the jury found in his favor. A motion for new trial was overruled, and the propounder excepted. The sole question presented is whether the evidence on the one issue of mental capacity was sufficient to authorize the verdict.

The evidence submitted on behalf of the propounder is hereafter referred to in the opinion.

The evidence for the caveator on the issue of mental capacity was, in substance, as follows:

Dr. O. C. Wood testified: 'I knew Mr. J. G. Spivey. He was under my care as a physician several times. * * * He was in the hospital about six times, the first time in September, 1943, then October, 1943, November, 1943, December 20, 1944, March, 1945, and October 29, 1946, and he died November 14, 1946. I don't think he came back to the hospital to consult with me more than two or three times between those dates. During these visits to the hospital and while he was under my care I had an opportunity to observe him as to his mental and physical condition. At no time did I ever see him when he was under my observation that I thought he was capable of transacting business. He gradually got worse. Taking into consideration the physical condition of Mr. Spivey, I doubt if his condition would improve, because his general condition was progressive and continued to get worse. Of course his condition would vary in some parts, with respect to his uremia, but as to hardening of the arteries and permanent mental deterioration, some days he was clearer than others and other days he would not know he was in the hospital. His condition continued to get worse from 1943, when I first saw him. At the time Mr. Spivey signed this will it had been 12 months since I had seen him, and he had not been back there except for an interim. He signed the will in May, 1946. The next time I saw him was October 29. I saw him in March, 1945, and did not see him any more until he came to the hospital when he died * * *. Mr. Spivey's condition was largely due to old age. I would say, in my opinion Mr. Spivey was not competent on May 14, 1946. I don't know what amount of mental competence is necessary to qualify a man to make a will. I think his mental capacity should be such as to enable him to make a good contract. * * * I am not attempting to say that a person would have to be capable of making a contract before he could make a will. I could not say that on May 14, 1946, Mr. Spivey was incapable of transacting any business, making a will or any other business--if it involved any responsibility, I would not think he would be able to do it. Mr. Spivey passed pus from time to time, which continued from the time I first saw him. That and his age, the hardening of his arteries, kept his mental condition from getting any better. * * * Mr. Spivey was not a mental case other than his mental condition was a complication of his medical condition. * * * I did not have to give Mr. Spivey a mental test to know his mind was bad. I could see that from observation.'

Dr. C. B. Fulgham testified: 'I am a licensed and practicing physician and am a physician at the Baldwin Memorial Hospital. * * * I knew Mr. Spivey in the hospital only. I passed him in the hall and occasionally spoke to him in his room. * * * He was almost continually trying to engage anyone in conversation that would get in conversation with him. I spent most of my time dodging him. I saw him prior to May 14, 1946. * * * I would see him on the dates Dr. Wood gave here as his being in the hospital. With reference to the date of March, 1945, I can say that at no time that I ever saw him was he, in my opinion capable of transacting any business, to his advantage. His condition continued to get worse from the first time I saw him. In my opinion he got worse from month to month. I never examined him and am not qualified to say about his physical condition, but he did get worse. * * * His physical condition on May 14, 1946, I would not know about; his mental condition was, I should consider, obvious on inspection. He was arterioschlerotic * * * his admission to the hospital was never caused by his physical condition. * * * It is my opinion in large part it was necessitated by his mental condition.'

W. J. Bell testified: 'Occasionally I had an opportunity to talk to Mr. Spivey during 1946. * * * I would average seeing Mr. Spivey once every two or three months in the last year or two. * * * I noticed something unusual about him. The reason why I noticed it, we were always such close friends; during the last year or two of his life it looked like he was distant, would not talk to me as he used to. He would recognize me.' On one occasion, in the fall of 1945, Mr. Spivey abused his grandson. 'He said, 'I told you not to do that,' and said 'I will knock you in the head if you don't pay any attention to me.' Mr. Spivey was to some extent impulsive, but I had never heard him talk that way to his grandson before. * * * I would consider his mind less active than it had been. * * * I would not say Mr. Spivey has been impulsive more than a normal man would be. He was a pretty strict man about things he wanted to do up to a certain time, and after that his mind was considerably weaker than it was previously. That would be two or three years before he died. I could see a difference in him, even his attitude towards me.'

Frank Spivey testified: 'I was a grandson of Mr. J. G. Spivey. I saw him every day during 1945 and 1946. I was living out in the country with him. I stayed in the room with him. He usually had the habit of going to bed at 11 or 12 at night. Once in the day time I went in the room around dinner. He was getting ready to go to bed. I asked him, didn't feel all right. He said 'No, it was time to go to bed.' He figured it was night and I tried to explain to him and he got mad with me. He lived on the place there 80 years and got lost on his own place, in sight of the house where he lived all his life. I noticed him on May 14, 1945. The thing he got mad about that morning, usually when we went to work every morning he wanted to get up at that time, but he overslept that morning because nobody didn't wake him up. He got mad with everybody in the house because they didn't wake him up. His mind was sure bad on the date of May 14, 1946. * * * To the best of my knowledge Mr. Spivey's mind was bad in 1946. I would say it has been bad for several years, since 1942, or 1943, or a little before.'

W. D. Stribling testified that Mr. Spivey would come by his garage during 1945 and 1946 to catch a bus, but would not recognize him, and he would have to tell him who he was; that he didn't remember seeing Mr. Spivey on May 14, 1946, and didn't know anything about the condition of his mind on that day.

R. R. Spivey testified: 'Mr. J. G. Spivey was my father. In the spring of 1945 he was sick, more mental than physical, and we took him to the hospital and his mind from then on continued to get worse. During the winter time I would have to watch him every night, when he was building his fire. * * * One night he caught fire and my wife and myself had to go in and put him out. He came to breakfast several times in the morning, and we had to send him back to put on his clothes. He went off to the place where he married and was leaving, and the old negro walked up in the yard and he asked who lived there, and the negro took him and brought him back and put him in the public road and brought him home. * * * He has threatened to kill me, started on me with a poker three different times. He had a pistol in his drawer that I loaned him. I took it out. There is a door between my room and his. I saw that it was locked, and we were alert any time, we didn't know what he was going to do. On May 14, 1946, based on these things, I would say his mind was bad, that day and all days. He was not able to do anything and I had to stop him from doing some things that he was doing wrong and got legal advice and doctor's service. * * * I looked after every bit of his business for him. He had found out a long time ago that he couldn't attend to business. * * * He was in the hospital until April 1, 1945, when I brought him home and from then on his mind got worse and worse.'

Dr. E F. Griffith testified: 'I practice here in Eatonton; I knew Mr. J. G. Spivey during his lifetime very well. I attended him off and on for about 30 years and was intimately familiar with his mental capacity. I did not see him on May 14, 1946, but from past knowledge of Mr. Spivey and his mental condition and the number of times I had seen him in the past...