SUBMITTED NOVEMBER 8, 1954.
DECIDED JANUARY 10, 1955.
Probate of will. Before Judge Edwards. Baldwin Superior Court. August 27, 1954.
W. S. Edwards, George Jackson, Whitman Whitman, R. C. Whitman, Jr., for plaintiffs in error.
Milton F. Gardner, D. D. Veal, contra.
1. The administrator of the estate of Marion W. Stembridge was not a party to the probate proceedings in the court below, and is not an indispensable party in this court to the review of the judgment denying probate. Continental Trust Co. v. Sabine Basket Co., 165 Ga. 591 ( 141 S.E. 664); Hicks v. Atlanta Trust Co., 187 Ga. 314 ( 200 S.E. 301); Cantrell v. Kaylor, 203 Ga. 157 ( 45 S.E.2d 646). The motion of the administrator of the testator's estate to dismiss the writ of error because he was not made a party to the writ of error is denied.
2. The evidence of the subscribing witnesses was sufficient to make out a prima facie case of testamentary capacity upon the part of the testator to make a valid will; and where there was nothing in the evidence produced by the caveatrix which would have authorized a finding in her favor upon any of her contentions as contained in the caveat, the trial court should have granted the motion of the propounders to set aside the verdict and judgment in favor of the caveatrix and entered a judgment in accordance with the motion for a directed verdict. Accordingly, direction is given to enter a verdict and judgment in favor of the propounders.
SUBMITTED NOVEMBER 8, 1954 — DECIDED JANUARY 10, 1955.
Marion W. Stembridge executed a will on January 8, 1951, and died on May 2, 1953. His wife, Sara J. Stembridge, was his only heir at law. Mrs. Mildred Beman, Edward Beman, and Thelma Stembridge filed for probate in solemn form, in the Court of Ordinary of Baldwin County, the above will in which the testator named Mr. and Mrs. Beman as his executors, and in which he bequeathed one dollar to his wife, made provision for named employees, and left the residuum of his estate to his sister, Thelma Stembridge.
Mrs. Marion W. (Sara J.) Stembridge filed a caveat on the grounds that at the time the will was executed: (1) the deceased was not of sound and disposing mind and memory; (2) the testator was suffering from monomania or insane delusions toward the caveatrix, in that he believed she was trying to poison him or kill him with X-rays in order to get control of his money and property; (3) the testator suffered from monomania and thought his wife was trying to get his money, and his will was the result of and connected with his monomania; (4) the testator was laboring under a mistake of fact, in that he thought his wife did not love him and was against him, which was not true; and (5) that, after the execution of the will, the testator made material changes and alterations with the intention to revoke the same and did revoke the instrument.
To an adverse ruling in the court of ordinary the propounders appealed to Baldwin Superior Court. On the trial in the superior court, George M. Nottingham, a subscribing witness, testified in part for the propounders: He was a practicing attorney in Macon. The testator came to witness's office in January, 1951, and asked him to witness his will. He had seen the testator several times but never talked to him except once before, which was two or three years before the will was executed. All the subscribing witnesses were in the office. Testator signed the will and the three witnesses signed it. They were in the testator's presence and he was in their presence and they were in the presence of each other. The testator told the witnesses that the paper was his will. To the best of witness's ability the testator was of sound mind at the time. The will was a single sheet of paper and nothing was attached to it.
Mrs. Ethel M. Perdue, a subscribing witness, testified: She saw the testator sign the paper. All of the witnesses were in the room at the time they witnessed the will. They signed in the presence of each other and in the presence of the testator. At the time, the testator was apparently of sound mind.
Harry E. Nottingham, a subscribing witness, testified: He was an attorney in Macon and witnessed the signature of the testator. Each of the witnesses signed the paper in the presence of each other and in the presence of the testator. The testator requested all of them to witness his signature to his will. In witness's opinion the testator was of sound mind.
Following the testimony of the subscribing witnesses, the propounders introduced the will in evidence.
Dr. Edwin Allen, who operated Allen's Institution, testified for the caveatrix: In November, 1933, the testator was disturbed mentally and was treated two weeks in witness's institution. Testator had delusional ideas that people were trying to hurt him by putting poison in his food or medicine, and he involved his sister, Mrs. Leon Callaway, and the local doctor. At times the testator had hallucinations that people were shooting X-rays into his genital organs. He came to Allen's Institution voluntarily and was quiet and orderly for a while. Then he barricaded himself in his room and they had trouble getting his meals to him. Witness ate part of the food to demonstrate it was not poisoned, after which the testator ate. His condition improved and he got tranquil. He was in a panic state, which is more or less a temporary type of reaction. In November, 1942, the sheriff brought the testator, who had been placed in jail on a peace warrant and a lunacy warrant, to Allen's Institution and instructed witness to keep him until he called for him. Witness considered testator psychotic or suffering from mental illness. Money was important to him. He operated his business while he was a patient. The last time he was doing a brokerage business and he carried that on. He was not suffering from monomania about his money, but had delusional ideas on other subjects, particularly the idea that someone was trying to harm him. He was in a fear state. When his fears subsided to where he was fairly tranquil, he left the hospital. The last time witness saw the testator professionally was in 1942.
Mrs. Marion W. (Sara J.) Stembridge, the caveatrix, testified: She and the testator were married in August, 1947, and separated in July, 1949. In 1948 they were on a visit to her old home in South Georgia. Witness had not been back since her mother was buried in August, and asked testator to stop at the cemetery. He said he had to get back because he was losing important money. When questioned he became very angry, saying he was building a cathedral and if he built it strong they would not need friends, if you had money you had friends, money was your best friend. On their return home testator began to tell witness of Mrs. Callaway and Roger Stembridge trying to poison him so they could get his money, and that she was not to have anything to do with them; that witness was testator's protection and as long as he had a wife they could not get his property. Any associations witness had with testator's family upset him greatly. He admonished witness frequently not to have anything to do with Mrs. Callaway, Roger Stembridge, and Miss Stembridge. Shortly thereafter testator shot a negro woman, thus making it necessary for witness to be associated with his family. He was still very much upset and under the fears and delusions that they were against him and that witness expected to send him to prison so she could get his property. He left witness after the trial but she was in touch with him on January 7 and 8, 1951, and right along. He still persisted in the delusion that witness was a part of a conspiracy to get his money. Testator was upset about the trial and wanted witness to get out of the house. When testator did not get a new trial, he accused witness of interfering with his case and trying to send him to prison. He told her she would never get a penny of his money. Testator never ate with witness down town in Milledgeville. They went in a restaurant one time and ordered dinner, but he never touched it. At that time he ate everything that came in cans. He never drank any water or ate anything witness gave him. He did eat with her a time or two when they were first married. From time to time witness loaned testator about $17,000, some of which was paid back before and some after the separation, and $4,000 has not been repaid. From witness's contact with testator over the telephone on January 8, 1951, he was laboring under the delusion that she was trying to do him harm in his trial and in his business. From 1948 until testator's death in 1953, based on witness's contact with him over the telephone, his condition was progressively worse. Shortly after testator left witness, she found double rows of sheet lead between double rows of slats on the side of the bed where he slept, and found films between the mattress and spring underneath the pad. Witness did not give testator any reason to believe she was trying to take his money. She worked for him constantly in the business and did everything she could to help him. At the time the will was executed, the employees referred to therein were not working for the testator.
On cross-examination, the caveatrix testified she could not swear she talked to testator over the telephone January 6 or 7, or maybe the 8th. In January, 1951, testator was having witness's house painted, and was suffering with a delusion that a negro painter was stealing his paint. Witness called testator when the painter was going to quit, and testator accused her of interfering with the painter. The painting of the house was finished in the summer of 1951. After testator and witness had been separated about four years, witness filed suit for divorce, in which she sought to recover the $4,000 that had not been paid back to her. She was supporting herself and was in trouble and felt she was entitled to it.
W. S. Cox, a former bailiff, testified: About 1949 the testator was in the loan business and witness handled many papers for him in the justice of the peace court. On one occasion after the testator obtained a judgment against a negro, the latter reached an agreement with testator by paying part of the debt and executing new notes for the balance. When the negro defaulted on the new agreement, the testator took the fi. fa. off of the old judgment and demanded that witness levy it on the negro's property. Witness told him that he had made a new contract and his judgment was no good. Testator was upset and threatened to come into court and demand his money of witness. About January 7 or 8, 1951, witness did not remember the exact date, testator was having his house painted. Testator had the idea that the negroes were stealing his paint and wanted witness to put on old clothes and crawl under the house and watch to see if they stole any paint, which witness declined to do. Previously witness had had a violent dispute with testator about the fi. fa. On the question of the testator's mental condition in January, 1951, in witness's opinion, he was a hard man when it came to business affairs, who would not stop at anything if you crossed him up, and a man who thought he was right and you were wrong. Witness resigned the bailiff's office because he did not care to have any further trouble with testator. After the run in about the fi. fa., witness could not see any difference in testator's attitude. Testator always acted normally and was just as courteous and nice as could be and always paid his costs promptly without any argument.
C. S. Baldwin, Jr., Solicitor-General Emeritus, testified: In 1941 the testator brought samples of food and drink to witness's office and said his sister and her husband had been trying to poison him to get his money. Subsequently, upon being shown a report from the F. B. I., the testator had the appearance of thinking deeply, and then said: "Well, I will tell you what has happened. I have got enemies in the post office. . . Undoubtedly the samples" were switched in transit. About 1943, the testator brought more samples of food that he wanted witness to send off to be analyzed. He had been at Allen's Sanitarium and involved Dr. Allen. Testator mailed the specimens to J. Edgar Hoover. He did not have much to say when the report came back, but he then got the G. B. I. and a private detective and worked on that case for six months. After making reference to the trial in 1949, when the testator was accused of killing a negro woman, witness testified that in his opinion the testator had delusions of persecution, that people were trying to kill him, that his folks were trying to poison him, and that somebody substituted the samples in the mail. There was no doubt in witness's mind about testator being off. He was abnormal when it came to money matters. He could make money better than any of them. He would really go after it and he would get excited more over his money than anything else. From 1948 until testator's death he was under delusions of persecution and he was worse at the time of his death.
Paul Cox, a police officer, testified: In May, 1953, he was called to the Baldwin Hotel to unload some guns. He found five automatics and unloaded four. One was already unloaded. They were cocked or in position to fire. A refrigerator there had a padlock on it, and some of the bookcases had locks on them.
Robert J. Ashfield testified: He put a padlock on the refrigerator for testator, who said that the boys who ran the hotel were stealing his hair tonic. Witness declined to express an opinion as to whether testator's mind was sound or unsound on January 8, 1951.
G. D. Beck testified: He borrowed $6,000 from the testator on three trucks about 1949. Afterwards he thought he paid most of the money back. He paid testator so much a week and got a receipt from him. Testator claimed that witness still owed $4,400 and did not like it when he procured another finance company to take the loan up. When the matter was being closed, testator claimed witness owed him an additional 75 cents which he paid. Thereafter witness saw testator on the street once or twice a week, but he never spoke to witness, and on one occasion testator crossed the street when witness wanted to see him about a driver who owed testator some money. Witness traded at testator's store every week. Based on the transaction with reference to the loan on the trucks, in witness's opinion the testator was a little off, he was of unsound mind.
J. A. Gilmore, an attorney who was appointed administrator of the testator's estate before the will was offered, testified: He found five safes in testator's office, one of which he had not been able to open. The safe which was used by the testator was a heavy magnesium-steel screw-type safe, in which witness found, among other things, an automatic pistol, a series of notes, various keys, and papers including the will.
At the conclusion of the evidence, the trial court denied a motion by the propounders for the direction of a verdict, and the jury returned a verdict in favor of the caveatrix.
The propounders' motion for new trial, which was amended by adding five special grounds complaining that the trial court erred in the admission of evidence, was denied, and the exception is to that judgment and to the refusal to direct a verdict.
Only the second headnote requires elaboration. "Where there is no conflict in the evidence, and that introduced, with all reasonable deductions or inferences therefrom, shall demand a particular verdict, the court may direct the jury to find for the party entitled thereto." Code § 110-104. The mere fact that there are conflicts in the testimony does not render the direction of a verdict in favor of a party erroneous, when it appears that the conflicts are immaterial, and that, giving to the opposite party the benefit of the most favorable view of the evidence as a whole and of all legitimate inferences therefrom, the verdict against him is demanded. Skinner v. Braswell, 126 Ga. 761 (2) ( 55 S.E. 914).
The evidence of the subscribing witnesses was sufficient to make out a prima facie case of testamentary capacity upon the part of the testator to make a valid will. The trial court, in a written opinion denying the motion for new trial, said: "Although the evidence was insufficient to overcome the testimony of the subscribing witnesses, as applied to ordinary cases of probate of wills, nevertheless, under the rules applicable to cases of this kind where the law requires close scrutiny of the will and refusal of probate upon the slightest evidence of aberration of intellect, the evidence was sufficient to raise an issue to be determined by the jury and to uphold their verdict refusing probate."
Code § 113-106, declaring that a testator may bequeath his entire estate to strangers, to the exclusion of his wife or children, but in such case the will should be closely scrutinized, is not applicable where, as here, the testator had no children, and approximately two years after separating from his wife, executed a will which provided: "I am informed that it will be necessary to give my legal wife a certain share of my estate and I am sorry that this is true. I am not able to avoid the thought that if she had brought to our marriage the love, the enthusiasm, and the willingness to work that I felt; our answer would have been different. After mature consideration, it is my unqualified belief that she married me for what she hoped to get out of the marriage in a financial way. I give and bequeath to my legal wife the minimum that the law requires. One dollar."
The wife having been bequeathed one dollar, it cannot be held that she was altogether excluded in the will of the testator, and in Smith v. Davis, 203 Ga. 175 (2) ( 45 S.E.2d 609), it was held: "The provisions of § 113-106 of the Code are applicable only when the wife, there being no child or children, is altogether excluded in the will of her husband." The present case is distinguishable by its facts from Bowman v. Bowman, 205 Ga. 796 (3) ( 55 S.E.2d 298), where the testator expressly excluded his wife from participating in his will.
It is well-settled law that a lunatic during a lucid interval may make a will. Code § 113-204. Even an incapacity to contract is not inconsistent with the capacity to make a will, as it takes a greater quantum or higher degree of mentality to make a contract than it does to make a will. Code § 113-202; Wood v. Lane, 102 Ga. 199, 201 ( 29 S.E. 180). The weak have the same rights as the strong-minded to dispose of their property by will, and anything less than a total absence of mind does not destroy that capacity. If the testator has sufficient intellect to enable him to have a rational desire as to the disposition of his property, this is sufficient. And the condition of the testator's mind at the time of the execution of the will determines whether he can make a valid will. Griffin v. Barrett, 183 Ga. 152, 164 ( 187 S.E. 828).
"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, 754 ( 35 S.E.2d 253); Anderson v. Anderson, 210 Ga. 464, 472 ( 80 S.E.2d 807).
While there was much evidence in the present case tending to show that the testator was a highly eccentric person, the only medical expert testified: The last time he saw the testator professionally was in 1942. The testator operated his business while a patient. He was not suffering from monomania about his money but had delusional ideas on other subjects, particularly the idea that someone was trying to harm him. He was in a fear state which is more or less a temporary type of reaction.
The caveatrix testified: He had delusional ideas that members of his family were trying to poison him to get his money, but he left the residue of his estate to his sister Thelma. Caveatrix married the testator in August, 1947, and they separated in July, 1949, approximately a year and a half before the will was executed. A divorce suit caveatrix filed against the testator was pending at the time of his death. She admitted on cross-examination that she was not sure she talked with testator on the day the will was signed, and that she was not in Macon where the will was executed on that day.
The caveatrix assumed the burden of proving lack of testamentary capacity. The testimony of the subscribing witnesses, who gave their opinion as to the mental condition of the testator on the day the will was executed, that he did have mental capacity to execute the will, was not overcome by the non-expert witnesses testifying on behalf of the caveatrix, whose opinions were based upon facts from which no legal conclusion could be drawn that the testator did not have mental capacity to execute the will. All that their testimony amounted to was that the testator was highly eccentric and that he had delusional ideas that people were trying to harm him. The uncontroverted evidence showed that the testator not only conducted his brokerage business while a patient in Allen's Institution, but that he continued to conduct it until his death approximately two years after execution of the will.
Under section 2 of the amendment to the Rules of Practice and Procedure, adopted by this court on November 23, 1953 (Ga. L. 1953, Nov.-Dec. Sess., pp. 440, 444; Code, Ann. Supp., § 110-113), where a motion for a directed verdict has been denied, the party moving for a directed verdict may within 30 days after the reception of the verdict move to have the verdict and any judgment rendered thereon set aside and have judgment entered in accordance with his motion for a directed verdict. Where his motion is denied, the losing party "may take specific exception in the final bill of exceptions, and if the exception is sustained by the appellate court, direction shall be given that verdict be entered in accordance with the motion."
The evidence in the instant case being insufficient to authorize a verdict in favor of the caveatrix on any issue raised in the caveat, but demanding a verdict in favor of the propounders, the trial court should have granted the motion of the propounders to set aside the verdict and judgment in favor of the caveatrix and entered a judgment in accordance with the motion for a directed verdict. Direction is accordingly given: that, upon the return of the remittitur to the trial court, a verdict and judgment be entered in favor of the propounders.
The trial court having erred in not sustaining the propounders' motion to enter a judgment notwithstanding the verdict, the judgment denying the motion for a new trial was nugatory. Direction is given that the order overruling the motion for a new trial be set aside.
Judgment reversed with directions. All the Justices concur, except Candler, J., who dissents, and Mobley, J., who is disqualified.