Thompson v. Mitchell

• Decision Date: 12 September 1941
• Docket Number: 13810.
• Citation: 16 S.E.2d 540,192 Ga. 750
• Parties: THOMPSON v. MITCHELL et al.
• Court: Georgia Supreme Court

16 S.E.2d 540

192 Ga. 750

THOMPSON v. MITCHELL et al.

No. 13810.

Supreme Court of Georgia

September 12, 1941

Rehearing Denied Sept. 26, 1941.

Syllabus by the Court.

1. It is not cause for the grant of a new trial in a contested will case where the grounds of the caveat, although contained in nine separately numbered paragraphs, were based on lack of mental capacity and undue influence, the objection of lack of capacity having been presented in several varying forms, that the judge charged the jury that when the propounder makes out a prima facie case the burden then shifts to the caveators 'to prove the validity of the objections they have made to the probate of the will, or one or more of the objections alleged by them in the caveat filed to the alleged will which you will have out before you and which you should read for a more specific detail of the objections than I have given you in a general statement of the contentions of the parties,' although there was no evidence before the jury as to undue influence; the judge having previously charged the jury as follows: 'You are instructed, gentlemen, as a matter of law that there is no sufficient legal evidence in this case to submit to you the question of undue influence and on that question you are directed that the finding must be against undue influence as a matter of law,' the jury being given no instructions on undue influence, and no reference thereto being contained in the charge other than the one above quoted.

2. Nor is the grant of a new trial required because the judge charged the whole of section 113-204 of the Code including the sentence that 'A monomaniac may make a will, if the will is in no way the result of or connected with his monomania,' the caveat not alleging monomania and the evidence showing none. Though it is better for him not to do so, it is not usually cause for a new trial that the judge gives in charge to the jury an entire statutory or Code provision, a part of which is applicable and a part inapplicable to the case under consideration. Hall v. Burpee, 176 Ga. 270, 271(9), 168 S.E. 39. It was merely ruled in the first headnote in Wynne v. Harrell, 133 Ga. 616, 66 S.E. 921, that the evidence there was insufficient to authorize the court to charge the jury on that subject.

3. Where the testator has a child whose full name is Marvin Eugene, but who is generally known by the name Gene, and where his children are named in the will and the name James appears instead of Eugene, and the scrivener testifies that all of the children were named to him by the testator, and he can account for the appearance of the name James and the omission of the name Eugene only on the theory that perhaps he mistook the one for the other, it is not erroneous for the judge to charge the jury, in substance, that if the testator did not have sufficient mind and memory to know and remember the names of his children, he did not have mental capacity to make a will; but that if he knew and remembered the names of his children and the name James appeared in the will instead of that of the testator's son whose full name is Marvin Eugene, as a result of a mistake on the part of the scrivener or on the part of the testator when and if the will was read to him, then the jury would not consider this error in names on the question of mental capacity; the judge having instructed the jury that they must look to all of the evidence bearing upon this question and from that evidence reach a decision.

4. The evidence was sufficient to support the verdict.

G. A. Johns, of Winder, and A. M. Kelly, of Monroe, for plaintiff in error.

Joe Quillian, of Winder, for defendants in error.

GRICE Justice.

This is a contested will case, the error assigned being the refusal to set aside a verdict in favor of the caveators. Though undue influence was one of the bases of the caveat there was no evidence to support that ground, and the judge so instructed the jury. There can be in law no justification of a refusal to probate a will executed with the required formality, and freely and voluntarily, by a person not otherwise disabled or incompetent, but merely because a man had left practically all his estate to one child, giving to the others a dollar apiece (Watkins v. Jones, 184 Ga. 831...