Ware v. Hill

• Decision Date: 10 June 1952
• Docket Number: No. 17813,17813
• Citation: 71 S.E.2d 630,209 Ga. 214
• Parties: WARE v. HILL.
• Court: Georgia Supreme Court

Page 630

71 S.E.2d 630

209 Ga. 214

WARE v. HILL.

No. 17813.

Supreme Court of Georgia.

June 10, 1952.

Rehearing Denied July 15, 1952.

Syllabus by the Court.

1. Exceptions to portions of the court's charge, as complained of in the special grounds of the motion for a new trial, are without merit.

2. The verdict finding in favor of the caveatrix is supported by the evidence, and the trial judge did not err in denying the motion for new trial on the general grounds.

Walter N. Ware filed, for probate in solemn form, the will of Mrs. Minnie Josie Keeter in the Court of Ordinary of Lincoln County. Mrs. Effie Keeter Hill and Mrs. Tinie Keeter Martin filed separate caveats. After a hearing in the court of ordinary, that court entered an order probating the will as prayed. The caveators filed a joint appeal to the superior court, and when the appeal came on for trial, the propounder filed his demurrers to the caveat of Mrs. Hill, which were overruled, and exceptions pendent lite were filed. At the time of the trial there was a severance of the caveats, and the case proceeded to trial on the caveat of Mrs. Hill. Before the introduction of any evidence this caveatrix, in writing, admitted a prima facie case in favor of the propounder, and assumed the burden of proof of the grounds of her caveat. The court on the trial withdrew from the jury any issue as to the will being the result of fraud or undue influence, to which ruling no exception was taken, and submitted the sole issue as to whether or not the testatrix had testamentary capacity to make the will at the time of its execution. The trial resulted in a verdict in favor of the caveatrix, and the propounder's motion for a new trial as amended being denied, a bill of exceptions brings the case to this court for review. Counsel for the propounder in their brief expressly abandon the assignments of error on the exceptions pendente lite.

The husband of the testatrix died August 18, 1948, was buried in North Carolina on the 19th, and on August 21 after returning to Lincolnton the will here in question was executed. The testatrix died August 9, 1949. The testatrix had no children. Her husband had a daughter by a previous marriage, and the husband of this lady is named as the sole beneficiary.

Four witnesses testified for caveatrix, towit:

Frank Guillebeau: He knew Mrs. Keeter for 25 years, worked for her husband, looking after her lumber business. Knew her before and after she she had this stroke. She did not have the same mind at all after her stroke from what it was before. Before she had the stroke she was very active, very jolly with plenty of life in her, while after she had the stroke she was partially helpless both mentally and physically. Saw her fairly often down at the planing mill. Mrs. Keeter would not recognize him from one time to another after she had her stroke. She would just sit there at times in the office for an hour or two without having anything to say. After she had this stroke she was not capable of making a will or of knowing what property she owned or anything like that. As time progressed after Mr. Keeter had her stroke, her condition grew gradually worse. Did not remember seeing her during 1948. Did not know anything about the condition of Mrs. Keeter's mind on August 21, 1948.

Mrs. Effie Keeter Hill: Was a sister of testatrix, and lived in Forest City, North Carolina. Visited her at least once a year. She had a stroke about 10 years before her death. Before she had the stroke she was an intelligent, talkative person, could read and write. After she had the stroke her mind and hearing were affected. It did not affect her eyes, but it did her speech. She never got any better. She never did read after having the stroke. About a month before her husband died she visited her and she did not have much mind. The summer before her death she went with her to a nearby church. Mrs. Keeter had been there before. Attended that church regularly when she was able to attend. She could not tell us anything about how to get to the church. We went one way and came back another. We came back through Lincolnton. She asked what place it was. Mrs. Morrow said 'This is Lincolnton,' and she said 'No.' We drove up to a filling station in Lincolnton and Mrs. Morrow said, 'You know what place this is?' and she said she did not. Mrs. Morrow finally convinced her it was Lincolnton. Witness had seven children. Before her stroke Mrs. Keeter knew them all, but never did know any of them afterward. Based on her knowledge of her sister's condition, it was her opinion that on August 21, 1948, the date of making this alleged will, testatrix did not have sufficient mind to know what property she had, or what a will was, or what she was doing when she signed a will. At her husband's funeral she did not know witness's children and other people she had always known. You could talk to her one day about something and the next day she would not know anything about it. She could not remember anything from one day to the next. She did not know anything about her mental condition on August 21, 1948.

Mrs. Sue Morrow: She knew Mrs. Keeter before she had her stroke, and knew her well after she had her stroke. She never was right mentally after having her stroke. After she had the stroke she was never mentally capable of making a will or knowing what property she had. In July before she died in August, she together with Mrs. Effie Hill went with testatrix to Goshen Church. Testatrix did not know the way to church, though this was the church she often attended. On our return she did not recognize Lincolnton and argued it was not Lincolnton. Finally we convinced her. She did not know the condition of testatrix' mind on August 21, 1948. She did not see her that day.

Mrs. Tinie Keeter Martin: She lived with testatrix from the time she was two years old until she married. She attended the funeral of Mr. Keeter, and was at her home when she returned from the funeral. She was at the home of testatrix on Saturday (date of execution of will) when she returned from Lincolnton. She ate supper there and was with her for about three hours. She testified that from the time testatrix had the stroke until the day she died she did not think she was mentally capable of knowing what a will was or of knowing what she wanted to do with her property.

Colley & Orr, Clement E. Sutton, Washington, L. C. Groves, Lincolnton, for plaintiff in error.

Earle Norman, Washington, Fred D. Hamrick, Jr., Rutherfordton, N. C., for defendant in error.

ATKINSON, Presiding Justice (after stating the foregoing facts.)

1. All the special grounds assert in substance that the court erred in failing to charge the jury that, if the evidence showed that the testatrix left a child surviving her, then a verdict should be rendered for the propounder, in that in such circumstances the caveatrix, Mrs. Hill, would not be an heir at law, because under the undisputed evidence Mrs. Hill was a sister of the deceased, and there was some testimony that Mrs. Tinie Keeter Martin was a daughter of the testatix, and the failure to so instruct the jury as claimed was error injurious, prejudicial, and harmful to the propounder.

These grounds are insubstantial and without merit, for the reason that it appears from the record that, in the petition of the propounder to probate the will in solemn form, it was alleged that Mrs. Hill was an heir at law of the testatrix, and the court had before it the record in the case, wherein Mrs. Hill and Mrs. Martin filed separate caveats to the probate of the will in the court of ordinary; and when the will was probated in that court they filed a joint appeal to the superior court, and in Mrs. Martin's caveat she sought, in addition to the setting aside of the will, a decree adjudicating that she was the child of Mrs. C. E. (Minnie Josie) Keeter by reason of virtual adoption. The only reason why the propounder insists that the court should have charged in this regard was that Mrs. Martin, while testifying as a witness for the caveatrix, stated as a conclusion that the testatrix was her mother. Such statement, standing alone, was not sufficient to raise any issue of fact on the question of whether Mrs. Hill was or was not an heir at law of the testatrix.

2. The only issue submitted to the jury was whether or not the testatrix, at the time of the execution of the will, had sufficient mental capacity to make a will. The caveatrix admitted a prima facie case, and aside from that the propounder introduced evidence sufficient to sustain a jury verdict if found for the propounder. The jury having found for the caveat, the question here presented is whether or not there was sufficient evidence to sustain the verdict.

'Where testamentary capacity is the issue, the controlling question to be determined is the condition of the mind at the time of the execution of the will. As tending to illustrate the mental condition at that time, evidence of such condition at other times may be received; but where it is sought to establish testamentary incapacity by such evidence, it does not controvert the positive testimony of the subscribing witnesses unless it would be proof of testamentary incapacity at the time the will was signed.' Fehn v. Shaw, 199 Ga. 747, 35 S.E.2d 253, 257, and citations. This rule does not mean that, in order to overcome the positive testimony of the subscribing witnesses, it is essential to establish incapacity by some one who was present when the will was signed or who saw the testator the day the will was executed. Evidence as to the state of mind of the testator prior to and subsequent to the date of the execution of the will may illustrate the incompetency of the testator at the time of its execution. Where a condition of incapacity is shown to exist prior to the execution of a will, and it is further shown that this condition continues for a period of time subsequent to the date of...