Opinion
19414.
ARGUED JULY 9, 1956.
DECIDED SEPTEMBER 7, 1956.
Probate of will. Before Judge Perryman. Wilkes Superior Court. April 2, 1956.
Colley Orr, Carroll D. Colley, Wilbur A. Orr, Jr., for plaintiff in error.
Walton Hardin, contra.
1. The motion to dismiss the bill of exceptions, upon the ground that it contains no sufficient assignment of error, is without merit.
2. The evidence for the propounder was sufficient to make out a prima facie case of testamentary capacity upon the part of the testator to make a valid will, and the evidence introduced by the caveator was insufficient to authorize a finding in his favor upon the ground of mental incapacity. The trial judge should have granted the motion of the propounder to set aside the verdict and judgment in favor of the caveator and should have entered a judgment in accordance with the motion for a directed verdict. Accordingly, direction is given that, upon the return of the remittitur from this court to the trial court, such a judgment be entered.
ARGUED JULY 9, 1956 — DECIDED SEPTEMBER 7, 1956.
Mrs. Frances Nash, the nominated executrix, filed in the Court of Ordinary of Wilkes County her petition for probate in solemn form of the will of her father, C. L. Poss. To this petition Earl Poss, a son and heir at law of the testator, filed his caveat, alleging (1) that the testator did not have sufficient mental capacity to make a will at the time it was executed; and (2) that the will was the result of undue influence exercised upon the testator by his daughter, the propounder. Upon appeal to the superior court, the trial judge directed a verdict against the second ground of caveat, to which no exception is taken, and the jury returned a verdict in favor of the caveator upon the first ground of the caveat. The propounder excepts to the judgment denying her motion for a new trial based upon the general grounds, and her motion for judgment notwithstanding the verdict.
On the trial of this case, the two surviving attesting witnesses testified that, at the time of and in the execution of the will on July 17, 1953, the testator acted freely and voluntarily and was of sound mind. Other witnesses testified that they were with and observed the testator both before and after the date on which the will was executed, and that the testator was of sound mind. The evidence offered by the caveator may be summarized as follows: that the testator was in the hospital from June 11, 1953, to June 29, 1953, prior to the execution of the will on July 17, 1953, and on other occasions thereafter prior to his death on December 23, 1954. Dr. A. T. Nash, one of the attending physicians, testified that the testator was suffering from cancer of the prostate and anemia; that he received six blood transfusions while in the hospital between June 11 and June 29 and was administered certain medicines by muscular injections, instead of oral or venous applications; that he was a desperately sick or ill man in the summer of 1953, "when he was in a run-down condition; we would build him back up — he was up and down"; that if a person is sick and run-down and depressed for a long period of time, it could affect the mind; that "Since testamentary capacity is tied into the condition of the mind these two things could accompany each other"; but he further testified that the sedatives administered to the testator would not affect his mind; that "As to his mind, at times he looked like he was all right and at other times I couldn't say about his mind — he acted all right around me." Dr. C. E. Wills, Sr., the other attending physician, testified that the testator was given sedatives while first in the hospital, but that opiates were not given until after he came out of the hospital, from April (approximately nine months after the execution of the will) until he died; that with the administration of these drugs his mind would not be as active and clear; that he was 76 years of age; that a person of his health, age, and condition, would be more susceptible to the medicines than a normal person, and that "It would be my opinion that if Mr. Poss was old and in a weakened condition, that his mind would be weakened"; but he further testified that he could not say that Mr. Poss was not mentally and physically capable of making a will on July 17, 1953; "He could have been all right at that time so far as I know." Other witnesses testified that Mr. Poss was a mighty sick man; that as time went on his health got worse; that he was not able to do anything or walk any distance because of shortness of breath; that there were days when he would ask what day it was, and that on Sundays and Saturdays, when some of the witnesses would not go to work, he would want to know why they were not going to work. The caveator, Earl Poss, testified that he saw the testator daily after he came from the hospital the first time; that he was in a weakened condition; that he did not have much to say and was never as active after he left the hospital the first time as he had been before; "I was familiar with his mental condition. I would not swear his mind was as normal as before he went to the hospital. He was not sound physically."
1. A bill of exceptions which recites that the plaintiff in error moved for a directed verdict at the conclusion of the evidence, the denial of that motion, and after an adverse verdict, the timely filing of a motion for new trial based upon the general grounds, and a motion for judgment notwithstanding the verdict, and contains assignments of error as follows: "To this judgment of the trial court overruling her motion for new trial the plaintiff then and there excepted, and now excepts, and assigns error thereon as being contrary to law on each and all of the grounds of said motion for new trial, and says that the court erred in overruling said motion for new trial on each and all of the grounds therein stated," and "To this judgment denying judgment non obstante veredicto, the plaintiff then and there excepted, and now excepts, and assigns error thereon as being contrary to law, and says that the court erred in overruling said motion and refusing to render a judgment in favor of the propounder, plaintiff in the trial court, as provided by law," is sufficient to avoid a dismissal of the bill of exceptions upon the ground that it contains no sufficient assignment of error. Huxford v. Southern Pine Co. of Georgia, 124 Ga. 181 (1) ( 52 S.E. 439); Roberts v. McBrayer, 194 Ga. 606, 612 ( 22 S.E.2d 165); Sweat Gaskins v. Williamson, 185 Ga. 495 (1) ( 195 S.E. 408); Echols v. Thompson, 211 Ga. 299 ( 85 S.E.2d 423); Erskine Co. v. Duffy, 76 Ga. 602 (1); Futch v. State, 90 Ga. 472 (1) ( 16 S.E. 102). Accordingly, the motion to dismiss the bill of exceptions is denied.
2. As was pointed out by this court in Scott v. Gibson, 194 Ga. 503, 506 ( 22 S.E.2d 51), and in the cases there cited, 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 of his estate to one child; or because the will appeared to be unreasonable and unfair; or because the testator had some peculiarities and eccentricities; or because the instrument was signed by an aged and decrepit person; or by one in his last illness when his physical powers had almost left him; or by one of weak intellect; or by one shown to lack the necessary mental capacity at some time subsequent to the date of the execution of the will. While, under the ruling made in Pantone v. Pantone, 206 Ga. 305 (1) ( 57 S.E.2d 77), in determining the question of mental capacity, it is permissible to receive and consider evidence as to the state of the testator's mind and lack of mental capacity for a reasonable period both before and after the transaction under investigation, where such lack of mental capacity is shown to have been produced by permanent physical illnesses directly affecting the mind and continuously growing worse, and such evidence, if introduced, may be sufficient to authorize a jury to find against mental capacity at the time the instrument was executed, despite evidence of witnesses who were present at the time of the execution thereof that the maker did have such capacity — it is also a well-established rule of law that testamentary capacity is to be determined by the condition of the testator's mind at the time the will was executed. Martin v. Martin, 185 Ga. 349 (195 S.E.); Fehn v. Shaw, 199 Ga. 747 ( 35 S.E.2d 253); Whitfield v. Pitts, 205 Ga. 259 ( 53 S.E.2d 549); Brooker v. Brooker, 208 Ga. 387 ( 67 S.E.2d 117); Anderson v. Anderson, 210 Ga. 464 ( 80 S.E.2d 807).
Where, as in this case, the two surviving attesting witnesses make a prima facie case for probate of the will by their positive testimony that, at the time of the execution thereof, the testator acted freely and voluntarily, and was of sound mind, and there was other testimony to the same effect, and where the evidence for the caveator was in substance as set out in the foregoing statement of facts, it fails to show that he was not mentally capable of making his will on that date, nor at any time before or after that date, except that he was semi-conscious shortly before his death on December 23, 1954. The evidence demanded a verdict for the propounder, and the trial judge should have sustained the motion of, and entered judgment for, the propounder notwithstanding the verdict, and direction is given that, upon the return of the remittitur from this court to the trial court, such a judgment be entered. Beman v. Stembridge, 211 Ga. 274 ( 85 S.E.2d 434).
Judgment reversed with direction. All the Justices concur.