Ward v. Morris

• Decision Date: 15 May 1922
• Docket Number: 2782.
• Citation: 112 S.E. 719,153 Ga. 421
• Parties: WARD v. MORRIS.
• Court: Georgia Supreme Court

112 S.E. 719

153 Ga. 421

WARD v. MORRIS.

No. 2782.

Supreme Court of Georgia

May 15, 1922

Syllabus by the Court.

The court did not err in charging the jury as follows: "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, that is, that she made the will in due form of law, and that at the time of its execution the testatrix apparently had sufficient mental capacity to make it, and in making it acted freely and voluntarily. When the propounder shows these things that I have just told you about, that makes out a prima facie case; and, when this is done, the burden of proof shifts to the caveator to show undue influence or mental incapacity to make the will, at the time it was made." Slaughter v. Heath, 127 Ga 747 (9), 57 S.E. 69, 27 L.R.A. (N. S.) 1.

The court did not err in charging the jury as follows "Incapacity to contract may coexist with the capacity to make a will"--this being merely one sentence in section 3842 of the Civil Code of 1910. The criticism was that the capacity of the testatrix to make contracts was not in issue and that the court nowhere charged what mental capacity was necessary to make a contract, and nowhere charged the distinction between the capacity to contract and the capacity to make a will. If an elaboration had been desired on the subject of the capacity to make a contract and the distinction between capacity to contract and capacity to make a will, a written request should have been duly submitted.

The court did not err in charging the jury as follows "Honest persuasion or intercession to procure a will to be made in his favor would not amount to the exercise of undue influence on the part of John F. Ward. If you find that John F. Ward, by honest intercession or persuasion, sought to have his sister, Miss Martha A. Ward, make a will in his favor, that in itself would not amount to undue influence, and the will should not be set aside on that account alone." De Nieff v. Howell, 138 Ga. 248 (6), 75 S.E. 2; Ricketson v. Ricketson, 151 Ga. 540, 544 (2), 107 S.E. 522.

The court did not err in refusing to admit in evidence a former will executed by the testator on May 17, 1904, the same having been revoked by the will sought to be probated, dated July 4, 1917.

The court did not err in refusing to permit witnesses on behalf of the caveator to testify what two witnesses swore on a former trial of the case; such evidence being offered as a whole, and a portion thereof being inadmissible.

The evidence authorized the verdict. This is conceded by the plaintiffs in error.

Error from Superior Court, Floyd County; Moses Wright, Judge.

Proceeding by C. W. Morris, administrator, for the probate of an alleged will, to which E. W. Ward filed a caveat. Judgment in favor of the propounder, and the caveator brings error. Affirmed.

Denny & Wright and M. B. Eubanks, all of Rome, for plaintiff in error.

Maddox & Doyal, of Rome, for defendant in error.

GILBERT J.

1. Except the fourth and fifth, none of the headnotes require elaboration.

2. One ground of the motion for a new trial complains that the court erred in excluding from the evidence a former will executed with the formalities required by law on May 17, 1904, the will sought to be probated having been executed on July 4, 1917. The caveat was based on the ground that the testatrix did not have testamentary capacity to make a will, and that she was induced to make the purported will by fraud and undue influence of John F. Ward, the original propounder, now deceased, who was the sole beneficiary, to the exclusion of other equally near relatives. The general rule stated in 1 Schouler on Wills, etc. (5th Ed.) 294, is that, in connection with other proof of fraud and undue influence, declarations made at different times and at different intervals down to the making of the will, which disclose a longcherished purpose of disposing of his estate quite differently from what the will provides as propounded, or statements showing dislike or affection for the natural objects of his bounty, or for those favored in the alleged will, are admissible in evidence. As stated in 3 Wigmore on Evidence, § 1735:

"These statements may be found in oral utterances, in letters, in the draft of a will, or instructions to an attorney, or in any other form."

See Hughes v. Hughes' Ex'r, 31 Ala. 519. In the present case the caveator, E. W. Ward, was not a beneficiary under either will; therefore, if the court had admitted the evidence, it would have shown that the mind of the testator had undergone no change in regard to him. The propounder John F. Ward, was a beneficiary under both wills. He was the sole legatee in the latter will, inheriting all of the property of the testator after the payment of debts and burial expenses. In the former will a portion of the real estate of the testator was devised to the propounder, with the proviso that, should he die without children, the property was to descend to the children of another brother, Jos. H. Ward, the other portions of the property being devised to these children and the wife of Jos. H. Ward; but neither Jos. H. Ward nor his wife nor his children have joined in the caveat to contest the latter will. As above stated, only E. W. Ward, who was not a beneficiary in either will, is making the contest. There is an additional reason why the refusal to admit the former will in evidence is not reversible error. The evidential value of the will, if it had any, would have weighed as strongly in favor of the propounder as for the caveator, and perhaps stronger. It appears that in the former will, executed 13 years previously to the latter will, the testatrix bequeathed to John F. Ward, the propounder, practically all of her estate for life, with remainder to his children, but, if he died without children, the property, after his death, should go to the children of Joseph H. Ward. The only...