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Probate of will. Before Judge Thomas. Glynn Superior Court. December 17, 1953.
SUTTON, Justice.
Burton C. Anderson executed a will on April 8, 1950, and died on November 6, 1950. His son, Maynard C. Anderson, was his only heir at law. Mrs. Susie Anderson, a sister-in-law of the deceased, filed for probate in solemn form, in the Court of Ordinary of Glynn County, the above will in which the testator named her as his executrix, and in which he directed that the assets of his estate be sold and divided into four equal parts, one of which was bequeathed to his divorced wife, Mrs. Eula C. Anderson, one part to his son, Maynard C. Anderson, one part to his sister-in-law, Mrs. Susie Anderson, and one part to the Veterans' Administration.
Maynard C. Anderson filed a caveat on the grounds as amended: (1) that the deceased was not of sound and disclosing mind and memory at the time the will was executed and did not have sufficient mentality at said time to make a will, having been at that time and for some time prior thereto an adjudicated incompetent; (2) that the propounder, Mrs. Susie Anderson, exercised undue influence over the testator in order to prevail upon him to sign the purported will; (3) that the purported will was executed while the testator was laboring under a misapprehension with respect to certain alleged acts on the part of his son, and that it was executed under a mistake of fact which vitiated the will.
By consent of the parties the case was appealed to Glynn Superior Court without a trial in the court of ordinary. On the trial in the superior court, G. E. Waters, a subscribing witness, testified in part for the propounder: He knew Burton C. Anderson, the testator, for 20 or 25 years before the testator moved away from Glennville and saw him occasionally after he moved away. The testator signed the will first and the witness and the other subscribing witnesses signed in the testator's presence and in the presence of each other. The testator was in the witness's presence just a few minutes, and apparently was in his right mind. The witness did not see anything wrong with the testator, but he seemed just like he always did, and he signed the will freely and voluntarily.
On cross-examination: The attorney who wrote the will saw the witness passing his door and asked him to come up to his office. The witness "just said 'Hello, Mr. Anderson,' and he spoke back to me." The witness had no occasion to test his mentality in any way. It probably would have made a difference if he had known the testator had been certified by the Veterans' Administration as being insane. If the witness had known he was not able to pay his board, or buy his clothes or even pay small items, that would have made some difference in the opinion of the witness as to whether he was able to transact business.
Jessie Weitmon, a subscribing witness, testified: He had known the testator since he was a boy, and was well acquainted with him. The witness saw the testator sign the paper and saw the other subscribing witnesses sign it, and from the witness's observation that day he would say that the testator's mental condition was as good as it ever had been. He was perfectly sane and knew what he was doing. The testator and the three subscribing witnesses were the only persons present. The testator asked the witness to sign the will and said it was fixed just like he wanted it to go.
Cross-examination: The testator said he was having his will signed. The witness was not there long. About all he said was "Hello, Mr. Anderson," and Mr. Anderson, the testator, said "Hello." The witness knew about the Veterans' Administration in 1937 having certified to the court of ordinary that the testator was insane, and that a guardian was appointed for him. If the witness had known it was necessary for the testator's sister-in-law to pay his clothing bill out of the money he got, little items like $5 for clothes, or small items like $9 for lumber, and pay his board, he would have had some question as to whether the testator was able to transact any business.
C. L. Cowart, who wrote the will and who was a subscribing witness, testified: The testator signed the will in his presence and in the presence of the other two subscribing witnesses. All the witnesses signed at the testator's request. The testator asked the witness to prepare a will and told him how he wanted to dispose of his property. At the time the testator signed the will, he was of sound and disposing mind and knew what he was doing.
Cross-examination. The witness knew that in 1937 the testator had been rated by the Veterans' Administration as both insane and incompetent, and that a guardian was appointed for him.
The propounder then introduced the will in evidence.
Mrs. Susie Anderson, the propounder, called by the caveator for cross-examination, testified: She had known the testator for 20 years or more, and knew he was subject to epileptic fits. The testator's son was guardian prior to 1948, after which time witness was appointed guardian. C. L. Cowart was her attorney as such guardian, and she got him to investigate the accounts of the son as guardian and they found there was little left. The son was not present when they investigated his accounts, but they tried to contact him and wrote to him, but never heard from him. The testator received $150 each month from the Government, and $80 a month from rent. The witness as guardian handled all of his income, not only that from the Veterans' Administration, but his other income as well and she paid everything that was paid out and let him have an allowance each month. The guardians before her handled it the same way. The testator improved some about handling his affairs. At first he got $50 for board and $40 for allowance, and she paid the board. Later she let him pay the board. She even paid his bills for the clothes he bought and saw about that for him. Took care of $5 and $6 items. She handled everything. Her reason for handling them was that he was incompetent. She thought that was her duty, because he was adjudged incompetent and she was his guardian. She collected approximately $600 from the bonding company. The testator asked her to do it. He came to her home the night before the will was executed. That was after she had told him that she had collected from the bonding company. He asked her the name of an attorney and she told him that Judge Cowart was the one she used. She did not know why he wanted an attorney. He did not ask her whether she would serve as executrix. She had taken out her commission as guardian on every amount taken in and paid out.
At that time his father was simple-minded, and he would give the appearance of being in his right mind when actually he was not. Sometimes it took as long as three days to get over epileptic spells, and he would be way off balance a day or two before the spell would hit him. His condition was worse then than at other times. After the witness returned from World War II, his father was not satisfied with the one who was serving as his guardian and the witness was appointed. He succeeded the guardian who followed Mr. Shader. The witness spent a lot of the money making repairs to his father's property, known as the Anderson Boarding House. His father's compensation was $138 a month and his income from the property was $115. Mrs. Susie Anderson, the propounder, put her brother in the house at a reduced rental, from $115 to $80, and he is there now renting the place. The first the witness heard about any claim against him for wrongfully using some of his father's money was after he read his father's will. He learned then that the bonding company had been sued for about $600. The witness was living in Jacksonville, Florida, and did not get any notice of that proceeding in the court of ordinary. When he heard about it, he came to the office to see what they had charged him with. They had some checks they claimed he had cashed. He did not spend any part of the money he collected as guardian without his father's knowledge and consent. His father never raised any question about any of his expenditures. He did not have any trouble with him at all in that way and never heard a word about the alleged misappropriation of money until after his father's death. He then discovered that Mrs. Susie Anderson, the propounder, had delved into the records and picked up these small items and had collected them from the bonding company without his knowing anything about it. During the time he was guardian, 1946, 1948, sometimes his father's mind seemed to be all right and then again it was not. Just to sit and talk with him for a short time, he would appear to be normal, but he did not have the capacity to conduct business. The witness collected the money for him and handled everything for him that was required under the guardianship.
Cross-examination: The witness lived with his mother in Appling County after the separation; never lived with his father after he was seven years old until he was 19 years old. He heard of his father having fits in the last ten years, and mild attacks in the last 5 years. He was not getting better. He was taking treatments, but did not know whether that made the attacks milder. The last time the witness heard about this was about 2 years before his father died in November, 1950. He did not see his father have a fit during the time he was guardian, but heard of his having violent attacks after he was dismissed as guardian. When he was not under one of these fits, his father was apparently perfectly normal. He transacted his own little affairs; so far as making any trades he would take a little more leeway with the witness than with others. He would buy things and have the bills charged to the witness.
James Stanfield testified for the caveator: He had a conversation with the testator about three months before he died. He told the witness he had bought the old place, that he had enough compensation to take care of him and, if he could live long enough, he could pay for it and leave it to his son and his divorced wife. The testator was a man of vacillating or simple mind, since he started having fits.
Cross-examination: By a vacillating mind, he meant a wavering mind. The testator told the witness he had bought the home place. He apparently knew all about his business affairs and what he was talking about.
Ira McLean testified for the caveator: He had known the testator for many years and saw him have two or three fits. He seemed to just pass out when he had one. Sometime before he died, he told the witness he made his will and that his son and his divorced wife would get most of his property. After he started having fits, he was mentally a sick man and did not act like a normal human being. He was put under guardianship by the Veterans' Administration as being mentally incompetent, and tried to get relieved of his guardianship and the Veterans' Administration refused it.
Mrs. Burton C. Anderson testified for the caveator: She and the testator were married on January 10, 1920. He was working for a railroad, but was laid off in 1924, and resigned later on account of his epilepsy. He never went back to work. Ever since the fits started his mind was bad and he was incompetent during that time to do any kind of business. The fits were severe, they were really horrible at times. His mind would get worse with time. They were divorced in 1927, and the only time she had seen him since 1926, the date of their separation, was in 1939 when their son graduated from high school.
The caveator introduced in evidence a certified copy of the proceedings taken in connection with the application of D. W. Shader for appointment as guardian of Burton C. Anderson, including the judgment dated November 1, 1937, appointing Shader as guardian. Attached was a certificate signed by the ordinary, certifying that the foregoing was a true and correct copy of the commitment proceedings filed in the court of ordinary in the matter of Burton C. Anderson, incompetent, and further certifying that there had been no modification of the orders issued in connection with the proceeding. Attached as an exhibit to the petition of Shader was a certificate of rating of incompetency by the Veterans' Administration, that Burton C. Anderson had been rated insane and incompetent. A certified copy of the letters of guardianship issued to Mrs. W. H. Anderson was also introduced in evidence.
At the conclusion of the evidence, the court, upon motion of the propounder, directed a verdict in her favor and a final decree was entered ordering the will to record in terms of the law, and that letters testamentary issue to Mrs. Susie Anderson, as executrix of the said will, by the Ordinary of Glynn County.
The caveator's motion for new trial, which was amended by adding one special ground complaining that the trial court erred in directing a verdict in favor of the propounder, was denied, and the exception is to that judgment.
The special ground of the motion for new trial complains that the trial court erred in directing a verdict in favor of the propounder, because the evidence presented an issue of fact which should have been submitted to the jury: (a) on the question of whether the testator had sufficient testamentary capacity at the time the will was executed; (b) whether the propounder had exercised undue influence over the testator in causing him to execute the will; (c) whether the will executed by the testator was executed under a mistake of fact.
"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.
It was contended by the caveator that the testator had been rated by the Veterans' Administration as both insane and incompetent, and therefore he could not make a will.
"An adult world-war veteran, an epileptic, for whom a guardian has been appointed under the provisions of Code, 49-802, 49-803, solely to receive, invest, and disburse for the ward funds or benefits allowed him by the Federal Government, is, where not shown to be non compos mentis, prima facie competent personally to exercise his full legal rights, in and out of court, with respect to all matters not affecting such benefits." Morse v. Caldwell, 55 Ga. App. 804 (1) (191 S. E. 479). And the appointment of such guardian, "although the appointment recites that the guardian appointed is guardian for property of the ward other than that derived from war risk insurance, is not an adjudication that the ward is insane and incapable of handling property other than that payable to him as war risk insurance." Rentz v. King, 66 Ga. App. 292 (1) (17 S. E. 2d 896). See annotation in 173 A. L. R. p. 1077, division IV, section 12, dealing with the effect of appointment, and the rights and duties of a guardian under the Uniform Veterans' Guardianship Act. The decision in Morse v. Caldwell, supra, also held that an epileptic, when not in the throes of an attack of epilepsy, is not less capacitated than a lunatic in a lucid interval. 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. See 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). Was there testimony in this case by other witnesses which if true, would have been sufficient to overcome the positive testimony of the subscribing witnesses to the effect that the testator was mentally capable to make the will at the time he executed it? An examination of the evidence fails to show such testimony.
The evidence was insufficient to sustain the contention of the caveator with respect to undue influence, claimed to have been exercised on the testator by his sister-in-law, the propounder of the will. It was held in Galloway v. Hogg, 167 Ga. 502, 524 (146 S. E. 156), that "Undue influence, to invalidate a will, . . . must, in effect, make the will the mental offspring of some other person, and must be operative on the mind of the testator at the time the will is executed."
Thurman, 144 Ga. 67 (3) (86 S. E. 233); Dyar v. Dyar, 161 Ga. 615 (9) (131 S. E. 535).
Finally, it is insisted by counsel for the caveator that the will was executed under a mistake of fact, and is for that reason void. The only mistake of fact referred to in the evidence is testimony to the effect that the testator had knowledge that some of his funds were improperly used by the caveator while the latter was acting as his guardian. The evidence demanded a finding that there was a shortage in the son's account, which the bonding company was required to pay. In such circumstances the jury would not have been authorized to find that the testator executed the will under a mistake of fact.
Applying the above principles to the evidence in this case, there was nothing in the evidence offered by the caveator which would have authorized a finding in his favor upon any of his contentions as alleged in the caveat, and the court did not err iii directing a verdict in favor of the propounder. Griffin v. Barrett, 183 Ga. 152 (1), supra; Fehn v. Shaw, 199 Ga. 747, supra and cases cited.
It follows that the trial court did not err in denying the caveator's amended motion for new trial for any reason assigned.
Judgment affirmed. All the Justices concur.
Gowen, Conyers, Fendig & Dickey, Chris B. Conyers, C. L. Cowart, contra.
E. Way Highsmith, J. H. Highsmith & Highsmith, for plaintiff in error.
Saturday May 23 03:22 EDT

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