Penniston v. Kerrigan , 159 Ga. 345 ( 1924 )

Gilbert, J.

The allegations in the ground of the caveat to the will setting up the contention that the testator was unduly influenced in making the will, and that the will of others was substituted for the will of the testator, are not merely conclusions of the pleader. Some of the allegations in that ground of the caveat are allegations of fact. It is alleged that one of the daughters of the testator, mother of the defendants, poisoned the mind of the testator against the caveatrix by strongly arousing fears ánd sympathies on the part of the testator, and by deliberately and falsely making to the testator wrongful and untrue charges against caveatrix, to the effect that the caveatrix had no love or affection for the testator and was un dutiful and unworthy of his consideration; that caveatrix had aided the husband of the other daughter of testator, Mrs. Appleton, mother of the defendants, in a divorce proceeding between said daughter and her husband; that all of these efforts and acts of the mother of the defendants culminated in substituting her wishes for those of the testator; and that on the death of Mrs. Appleton her course of action was continued by her daughters; and that the codicils to testator’s will were executed under the same influence, misrepresentation, and undue influence; and that the will and codicils do not represent the wishes of the. testator, but are the substituted will of Mrs. Appleton and her two daughters.

It is true that the allegations of the caveat with reference to undue influence do not furnish information to the defendants of the exact or precise words and language used for the purpose of unduly influencing the testator. If this should be required in cases of this kind, it ’may well be doubted whether undue influence could ever be established. .We can not think that such minute details are required in proceedings of this kind. The Civil Code (1910), § 3834, declares: “The very nature of a will requires that it should be freely and voluntarily executed; hence, anything which destroys this freedom of volition invalidates a will; such as fraudulent practices upon testator’s fears, affections, or sympathies, duress or any undue influence, whereby the will of another is substituted for the wishes of the testator.” If the courts should hold it necessary to allege the precise words employed to unduly influence the mind of the testator, ’that portion of the statute above quoted would become impotent and unenforceable. The impossible in pleading is not required. In order to make the statute enforceable the requirements of pleading should not be so strict as to render it impossible in any case to prove the allegation. When the trial on such an issue reaches the stage where evidence must be introduced to establish the allegations, we find that the rules of evidence in such a case established by long practice in the courts have taken into account the peculiar circumstances surrounding the issue, an‘d the allegations necessary to be próved. In Redfearn on Wills and Administration of Estates, § 48, it is said: “A very wide range of testimony is permissible on the issue of undue influence. This is due to the fact that undue influence seldom can be shown except by circumstantial evidence. It results from the circumstances and surroundings of the testator and his associations with the person or persons exercising the undue influence. For' this reason it is proper, on this issue, to consider the testator’s dealings and associations with the beneficiaries; his habits, motives, feelings; his strength or weakness of character; his- confidential, family, social, and business relations; the reasonableness or unreasonableness of the'will; his mental and physical condition at the time the will was made; his manner and conduct; and generally every fact which will throw any light on the issue raised by the charge of undue influence.” Following the statement quoted a very clear 'and useful explanation of the kind and character of evidence admissible on the issue of undue influence will be found in sections 49 et seq., with citation of authorities in the footnotes. See also Grice on Executors, Administrators & Guardians, 290 et seq. If this ground of the caveat rested alone upon the allegation in regard to the divorce proceeding, the judgment striking the second ground of caveat could be treated as harmless, because the same issue was submitted to the jury under another ground of caveat. The second ground based on alleged undue influence also contained the other allegations hereinbefore stated. Is it a mere conclusion to allege that one of two daughters has represented to a father that the other daughter does not love the. father? Love is and ever has been one of the most powerful motives that rule the human mind. In all history nothing has so wrung the parental heart with grief as the belief that a child is undutiful, unworthy, and unloving. Love has led to the greatest tragedies. It has destroyed cities and empires. In all ages in song and story love and unrequited love have been painted as the ruling passions of men and women. Next to love, perhaps, comes the desire for money, and the jealousies and suspicions that too often arise on the passing of a parent or ancestor whose worldly possessions are to be distributed among expectant heirs. We think that to allege in a caveat that one daughter has convinced a father that the other daughter does not love the father is to allege a fact and a most potent fact likely to influence the father in the execution of his will. The court erred in striking this ground of the caveat.

Judgment reversed.

All the Justices concur: