Wetter v. Habersham

• Decision Date: 31 January 1878
• Citation: 60 Ga. 193
• Parties: Wetter, guardian, et al. v. Habersham et al., executors.
• Court: Georgia Supreme Court

60 Ga. 193

Wetter, guardian, et al. v. Habersham et al., executors.

Supreme Court of the State of Georgia

(January Term, 1878.)

60 Ga. 193

[Jackson, Judge, being related to some of the plaintiffs in error, Judge Hillyer, of the Atlanta circuit, was designated by the governor to preside in his place.]

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Wills. Descent. Estates. Parties. Evidence. Practice in the Superior Court. Charge of Court. Before Judge Tompkins. Chatham Superior Court. May Term, 1877.

The executors of Mary Telfair, deceased, propounded a will, which was caveated by two sets of heirs at law claiming *separately—the "Wetters" and the "Joneses." The case was carried from the court of ordinary to the superior court by appeal. At the close of the evidence, counsel for the propounders moved to dismiss the caveat and appeal of the Wetters on the ground that the evidence of caveators showed that the Joneses were nearer of kin to deceased, and the Wetters therefore could not be heirs at law. This was overruled. The court submitted questions to the jury, which they answered specially, and then found in general terms for the caveat of the Wetters and against that of the Joneses. The propounders moved for a new trial on the following, among other grounds:

1st. Because the court erred in admitting as evidence to the jury, an indorsement upon a letter from Mrs. Alberta Wetter to her husband A. P. Wetter, purporting to be an extract from a letter written by said Mrs. Wetter to her aunts, Miss Mary Telfair and Mrs. Hodgson, there being no evidence that the letter from which said extract purported to have been taken, was ever sent to, or received by the said Miss Mary Telfair and Mrs. Hodgson, and said extract being irrelevant to the issues on trial.

2d. Because the court allowed A. P. Wetter to testify to the contents of a bill in equity, alleged to have been filed for the pur-pose of procuring a certain family vault at Sharon to be closed up, which bill in equity nowhere appears upon the docket or record of the court for which it was intended, and the alleged title of the same does not connect the testatrix, Mary Telfair, therewith, no foundation having been laid for the introduction of said secondary evidence; and the testimony being irrelevant to the issue.

3d. Because the court erred in refusing the motion of counsel of propounders, made at the close of the evidence in the case, to dismiss the caveat and the appeal of the caveator Augustus P. Wetter as guardian ad litem of J. A. T. Wetter, Mary Martha Wetter and Louisa Alberta Wetter, minors. The said motionbeing based on the fact that the evidence introduced by the two sets of caveators *themselves, showed that G. Noble Jones and Mrs. Mary Harrison and Alfred Cuthbert, caveators, were the children of the first cousin of the testatrix, of the maternal blood, and the said J. A. T. Wetter, Mary Martha Wetter and Louisa Alberta Wetter, were the greatgrandchildren of the brother of the said testatrix of the paternal blood, and thus the said children of the first cousins of the said testatrix were nearer by blood or in degree of consanguinity to said testatrix than the said great-grandchildren of her brother, and consequently the said great-grandchildren of her said brother were not her heirs at law.

4th. Because the court erred in charging the jury that it was incumbent upon the propounders to prove not only that the testatrix was of sound and disposing mind and memory at the time of the execution of her will, but also that she did not have any monomania, insane delusion, or partial insanity of any kind.

5th. Because the court erred in submitting to the jury section 2399 of the Code, inasmuch as the greater portion of said section was not applicable to the case at bar, and reading it to the jury was calculated to impress their minds with the idea that it was applicable, and that the will on trial came under its provisions, and to mislead them in their verdict.

6th. Because the court erred in charging the jury as follows: "A person may generally appear sensible in the ordinary intercourse and business transactions of life, and yet be the victim of monomania and insane delusion as to particular persons or particular matters; in fact, may be insane upon one subject and sane as to all others. If you should find from the evidence that the will now offered for probate was the result of such monomania or insane delusion, it will be your duty to set it aside, even though the proof should have failed to satisfy you that there was a total deprivation of reason in the testatrix, or that her mind was generally weak and unsound."

7th. Because the court erred in refusing to charge as follows: "If the jury find that the caveators, the children of * Augustus P. Wetter and his wife (formerly Alberta Cobb) were the great-grand-nieces of the testatrix at thetime of her death, and that George Noble Jones, and those claiming with him, were the children of the first cousin of the testatrix at the time of her death, then the latter set were the heirs at law of said testatrix at the time of her death, and not the children of Wetter."

8th. Because the verdict was contrary to law, evidence and the charge of the court.

The court granted a new trial, and caveators excepted.

T. M. Norwood; R. E. Lester; N. C. Collier; Richard H. Clark; O. A. Lochrane; Robert Toombs, for A. P. Wetter, guardian.

W. W. Montgomery; J. R. Saussy, for George Noble Jones et al.

Jackson, Lawton & Basinger; Hartridge & Chisholm; Wm. Grayson Mann, for the executors.

Hillyer, Judge.

1. The testatrix, Mary Telfair, died without children. There was much controversy as to who were her heirs at law, but all the contestants were remote collateral kindred. The estate disposed of under the will was a very large one, and the bulk of it is bequeathed to strangers; indeed, it may be said that all of it is so bequeathed, if the word "strangers" be taken to mean any persons not bearing the relationship of husband and wife, or children. The judge presiding at the trial in the court below gave in charge to the jury, section 2399 of the Code, in which it is provided, amongst other things, that where an entire estate is bequeathed to strangers, "to the exclusion of the wife and children, " the will should be closely scrutinized, and upon the slightest evidence of aberation of intellect, or collusion, or fraud, or any undue influence or unfair dealing, probate should be refused. On *the motion for new trial the judge held that this charge was error, and we think the latter ruling the correct one. The provision of law contained in section 2399 of the Code is based on the principle, the very rational and common sense principle, that a man is apt to love his wife and children, and that, in a well regulated mind, they are the natural, and, as human experience shows, almost the invariable objects of his bounty; and the law deems that to bequeath his property to strangers, to the exclusion of wife and children, is so unnatural an act as to require very little more evidence to establish the proposition that the testator's mind is not sound and disposing, and of testamentary capacity. But where there are no kindred having the relationship named in the act, the principle does not apply.

2. One of the grounds for a new trial was, that there was no evidence of monomania, and the presiding judge granted a new trial on this ground amongst others. As the case is to be tried again, we do not indulge in any extended commentary on the evidence. We will only say that looking carefully through the evidence in the record, we all agree thoroughly with Judge Tompkins, that there is nothing in it which amounts to proof of monomania, and we...