Marlin v. Hill , 192 Ga. 434 ( 1941 )

When the instant caveat is stripped of all allegations as to matters which do not appear to have had any bearing or influence upon the testatrix in the execution of her will, nothing remains except bare conclusions of the pleader as to fraud, scheme, device, and undue influence. The mere general averments as to these matters being insufficient to present any issue as to invalidity of the will, the court properly sustained the general demurrer and dismissed the caveat.

No. 13758. JUNE 17, 1941. This case arose by the filing of a caveat to an application for probate of a will. After appeal from the court of ordinary to the superior court, the caveat was dismissed on general demurrer, and the caveators excepted pendente lite. A verdict in favor of the propounder was returned. The caveators' motion for a new trial was overruled, and they excepted, assigning error also on the exceptions pendente lite.

M. G. Hill, as the nominated executor, propounded an alleged will of Mrs. Clementine Hill, who died on October 22, 1940. The will was dated July 12, 1940. Mrs. Hill was the widow of A. J. Hill, who predeceased her by about seven years. They had no children, and she inherited his estate as sole heir at law. By the will in question she left the greater portion of her estate to M. G. Hill, a nephew and former partner of her husband, and his administrator. The caveat by Mrs. R. R. Marlin and others, heirs at law of Mrs. Hill by collateral relationship, contained the following allegations:

There has been filed with the ordinary of Terrell County, Georgia, for probate in solemn form, an instrument purporting to be the last will and testament of Mrs. Clementine Hill, but which is void, for the reasons that the same is (1) unfair on its face, (2) an unreasonable disposition of property, and (3) obtained by the fraud and undue influence perpetrated by one Miles G. Hill upon Mrs. Clementine Hill; the said Miles G. Hill being the chief beneficiary under said will, and receiving under said purported will the bulk of said estate, and being relieved from giving any bond, and from making any returns to any court whatsoever. The late Andrew J. Hill, husband of Mrs. Clementine Hill, departed this life about seven years ago, leaving his widow, Mrs. Clementine Hill, who is one and the same as Mrs. A. J. Hill, his sole heir at law, and leaving at the time of his death an estate of the net value of approximately $50,000. Andrew J. Hill died intestate. On March 5, 1934, Miles G. Hill was appointed permanent administrator of the estate of A. J. Hill, and letters of administrator of the estate were granted to Miles G. Hill by the ordinary of said county on March 5, 1934. Miles G. Hill qualified as such, and gave bond of $10,000, with the United States Fidelity Guaranty Company as surety. He was a nephew of Andrew J. Hill, but was no blood kin to Mrs. Clementine Hill. At the time of the death of Andrew J. Hill, Miles G. Hill was his partner and interested in one half of his business, Andrew J. Hill being in the warehouse business and the warehouse being known under the firm name of Hill Hill. Mrs. Clementine Hill had no business experience, and relied entirely, then and for the next seven years and up to the time of her death, upon Miles G. Hill as her confidential and business adviser from the time of the death of her husband up to the time of her death. Miles G. Hill would sign all checks for Mrs. Clementine Hill, pay all of her bills, and handle all of her business, and she relied on him implicitly in a confidential way as her agent and trusted adviser, and in a fiduciary relationship, even to the extent of consulting him before sending for a doctor to administer to her in her ill health preceding her death. She discussed her business matters with Miles G. Hill, and no one else, and he is the only living person, other than counsel who drew the purported will, who knew its contents.

Miles G. Hill, as administrator of the estate of Andrew J. Hill. did sell the lands of his intestate at administrator's sale, and fraudulently and illegally purchased them at his own sale as administrator, taking advantage of illness and confidence and fiduciary relationship which Mrs. Clementine Hill, sole heir at law, had placed in him. A copy of the annual return showing in detail the sale and purchase by the administrator at his own sale was set forth as an exhibit attached to the petition. The administrator fraudulently purchased the Hill Hill warehouse at said administrator's sale, being the one-half interest of Andrew J. Hill. for $2500, when in fact said property was worth four or five times said amount, and thereafter said warehouse was sold by Miles G. Hill for $13,000. He purchased a two-thirds interest in 300 acres of land in the fourth district of Terrell County at said administrator's sale for $3000, when said land at a fair valuation was worth from five to ten times said amount. He purchased at his own sale a half interest in 3041/2 acres in the 12th and 3d districts of Terrell County, at the insignificant price of $750, when said property was worth at a fair valuation fifteen to twenty-five times the amount of said purchase. Said administrator purchased at his own said sale fifty acres of land in the 3d district of Terrell County, for the insignificant price (one-half interest) of $75, when said property was worth at a fair valuation from eight to ten times said purchase-price. After so purchasing said property Miles G. Hill deducted a claimed indebtedness to him by A. J. Hill for its full value. Said property, at a fair valuation, purchased by M. G. Hill at said administrator's sale, for $6325, was worth at least $25,000. Caveators allege as a fact that the price alleged to have been paid by said administrator at said sale was grossly inadequate. Said fraud was perpetrated upon Mrs. Clementine Hill by reason of the fact that she had no business experience, was in ill health, suffering with heart trouble, was of advanced age, and trusted and confided in the partner of her deceased husband implicitly. Miles G. Hill then began a fraudulent scheme to obtain the estate of Mrs. Clementine Hill, and to have willed to him the bulk and corpus of her estate, and have himself appointed executor thereof without bond and without being obligated to make any returns, so that this fraudulent sale could not be set aside by the heirs at law of Mrs. Clementine Hill upon her death, and so that said surety on his administrator's bond could not be sued by reason of said fraudulent administrator's sale.

Caveators allege, under the circumstances hereinbefore stated, that Mrs. Clementine Hill had a leaking heart, which gradually grew worse, and that she was confined to her home for the twelve months preceding her death on October 21, 1940; that such leaking heart would cause her to be confined to her bed and to be depressed; that she was at the time of her death seventy years of age, and prior thereto had no business experience; that she was on the best and most friendly terms with her blood kin, the plaintiffs in this case, and in fact, at her own request, was moved to the home of her nephew, Charlie Harris, about six weeks prior to her death, and died in his home. Nevertheless she consulted only Miles G. Hill as her confidential and business partner, as the administrator of the estate of her deceased husband, and she relied implicitly on him to handle her business affairs as her partner, agent and representative. Miles G. Hill, taking advantage of said old age, sickness, trust, inexperience, lack of business ability, and fiduciary relationship, not only acquired at a void administrator's sale the entire estate of Andrew J. Hill, but through said scheme and fraudulent practices, and violation of trust and confidence, obtained the corpus of the estate of Mrs. Clementine Hill, through said void will, to the exclusion of all blood kin, Miles G. Hill being no kin whatsoever to Mrs. Clementine Hill, and having no right in law or equity to said estate, and said will was made without reason, and is unreasonable on its face, and Miles G. Hill under the circumstances hereinbefore alleged, through said fraudulent conduct and undue influence, substituted his own will for the will of Mrs. Clementine Hill, and caused her, by reason of said confidence and undue influence, to execute, against her will, the instrument aforesaid, and the same was not the free and voluntary act of Mrs. Clementine Hill, but was a scheme and device, as hereinbefore alleged, to obtain the entire estate of Mrs. Clementine Hill for himself, without any legal or moral right thereto, or for any reason whatsoever. After the death of Andrew J. Hill there was in the warehouse of Hill Hill some 8000 bales of cotton, upon which there was a rental due by the United States and later paid to said firm the sum of $24,000; and caveators allege on information and belief that Miles G. Hill has never accounted to either estate for said funds collected from said United States Government for rent as aforesaid. Caveators further allege that in addition to the above rental, there has not been an accounting for the $1.50 per bale also received from the producer and/or buyer. Miles G. Hill employed counsel to draw said will, and furnished counsel with the information to put in said will, and after the will was executed it was immediately delivered to Miles G. Hill, who held it in his safety deposit box until the death of the testatrix, and he was the only living person who knew the contents of said will, and who was consulted with respect to the contents of said will, other than counsel who drew the same, and the same was the act and deed in truth and in fact of Miles G. Hill, and not of Mrs. Clementine Hill. Miles G. Hill is about fifty-five to sixty years of age, a man of independent means, worth at least $100,000, and there was no reason why he should be given said entire estate, to the exclusion of all blood kind of said testatrix, who were on good terms with said testatrix, as hereinbefore stated. Mrs. Clementine Hill had theretofore had prepared, by attorney R. R. Jones, two other wills, and the same have been destroyed; and in the former wills Miles G. Hill was not chief beneficiary.

A copy of the will under attack is shown in the record. In item 2 the testatrix devised and bequeathed to two of the caveators a portrait of her grandmother, a silver dipper, one marble-top antique table, and other personal effects apparently of insignificant value. Item 3 directed that the debts of the testatrix be paid from the proceeds of her government bonds, after which all the rest and residue of said bonds were devised and bequeathed to W. L. and M. G. Hill, share and share alike. Item 4 gave all the rest and residue of the estate, both real and personal, to M. G. Hill. Item 5 appointed M. G. Hill as executor, stated his authority, and relieved him from giving bond or making returns. The question for determination is whether the court erred in sustaining the general demurrer and dismissing the caveat. Mrs. Hill, the testatrix, was predeceased by her husband, who died intestate. They had no children, and therefore she inherited his estate as sole heir at law. It appears that she devised the greater portion of her estate to M. G. Hill, who was a nephew and former partner of her husband, and his administrator. The caveators are collateral relatives, who with others in similar situation are the next of kin of Mrs. Hill. After the death of her husband, Mrs. Hill relied, it is alleged, greatly on M. G. Hill for assistance, not only in matters of business but in personal affairs.

A person may by will make any disposition of his or her property not inconsistent with the laws or contrary to the policy of the State. Code, § 113-106. It is not contended that Mrs. Hill could not by her own free will and accord bequeath her entire estate to M. G. Hill, the nephew of her husband, to the exclusion of her own relatives, if she saw fit to do so. It is insisted, however, that the will as made is unfair and unreasonable on its face, and was obtained by fraud and undue influence on the part of M. G. Hill, the principal beneficiary. There is no averment, not even a hint, that Mrs. Hill was not of sound and intelligent mind; and therefore it must be assumed that she was possessed of normal mental faculties. It does appear that she had been ill for some time, and that she suffered physical weakness and pain, but not that her mind was impaired at any time before her death, and the will was executed more than three months before that event. The fact that M. G. Hill may have occupied a confidential relation to Mrs. Hill does not, without more, argue that her will was invalid on the ground of fraud or undue influence. Nor could it be treated as invalid because in consequence of such relationship he may have employed an attorney to draw the will, furnished information as to what it should contain, and finally kept it in a safety-deposit box, without divulging its contents. The will having been solemnly executed in form of law, presumably the information so furnished was transmitted from the testatrix. "There can be no fatally undue influence without a person incapable of protecting himself as well as a wrong-doer to be resisted." DeNieff v. Howell, 138 Ga. 248 (6), 251 (75 S.E. 202). See Burroughs v. Reed. 150 Ga. 724 (105 S.E. 290); Brown v. Kendrick, 163 Ga. 149 (5), 166 (135 S.E. 721); Crutchfield v. McCallie, 188 Ga. 833. 840 (5 S.E.2d 33). While confidential relation might be an important circumstance to support a charge of fraud or undue influence, a person occupying such relation would not be prevented from exercising any influence whatever to obtain a benefit to himself, and the relationship alone would not afford a substitute for allegations of fact touching fraud or undue influence.Ricketson v. Ricketson, 151 Ga. 540, 544 (107 S.E. 522). We are dealing here only with a question of pleading, and not with any question as to how far proof of such relationship might go toward shifting the burden of evidence on the trial of a will case, where vitiating elements are duly alleged. CompareTrustees of Jesse Parker Williams Hospital v. Nisbet,191 Ga. 821 (14 S.E.2d 64), which, however, was not a will case.

The undue influence which the law contemplates as a ground to invalidate a properly executed will must be such as amounts to fraud, deceit, force, or coercion, destroying the testator's free agency. It must also be operative at the time the will is executed, and not merely at some other time. Boland v.Aycock, 191 Ga. 327 (12 S.E.2d 319). While the caveat in this case alleges numerous irregularities in the administration of the estate of the decedent's husband, which might be considered as fraud on the part of M. G. Hill, as administrator, if duly attacked by a party at interest, yet it appears from the allegations that the only party at interest was Mrs. Hill herself; and on proper construction of the caveat as a whole, it must be assumed that she had full knowledge of the manner in which the estate was administered, and assented, there being no allegation to the contrary. Krueger v. MacDougald, 148 Ga. 429 (96 S.E. 867). Manifestly the allegations as to fraud and irregularity in the administration of her husband's estate would not amount to a charge that any fraud or undue influence was exerted upon her in relation to her own last will and testament. When the caveat is thus stripped of allegations as to matters which do not appear to have had any bearing or influence upon the testatrix in the making of her will, nothing remains except bare conclusions of the pleader as to fraud, scheme, device, and undue influence. In Field v. Brantley, 139 Ga. 437 (3) (77 S.E. 559), it was held: "If undue influence is relied on to impeach a paper propounded as a will, the facts constituting such undue influence must be alleged. A general averment that the propounders and a legatee influenced the testator to make the will presents no issue of undue influence." In the opinion it was said: "The undue influence over a testator's act, which invalidates his testamentary power, must go to the extent whereby the will of another is substituted for the wishes of the testator. . . It is one of the oldest maxims of pleading that every pleader is presumed to state his case as favorably to himself as he can do. It is also one of the fundamental rules of pleading that facts and not legal conclusions must be alleged. If fraud is relied on to vitiate an act, the particular facts constituting the fraud must be stated, and a general charge of fraud may be assailed by general demurrer. . . Undue influence is the handmaiden of fraud, and good pleading requires an averment of the facts relied on to constitute it. This general principle of pleading is applicable to pleadings to contest the probate of wills, and the general rule is to set forth the facts constituting fraud or undue influence in a proceeding to contest a will upon these grounds. . . In the instant case there is not even a distinct allegation that the will was obtained by undue influence, and the facts alleged do not constitute undue influence." To the same effect see Baucum v. Harper, 176 Ga. 296 (2) (168 S.E. 27); Peavey v. Crawford, 182 Ga. 782 (187 S.E. 13). The decisions in Penniston v. Kerrigan, 159 Ga. 345 (125 S.E. 795), Stephens v. Bonner, 174 Ga. 128 (162 S.E. 383),Trust Company of Georgia v. Ivey, 178 Ga. 629 (173 S.E. 648), and Trustees of Jesse Parker Williams Hospital v.Nisbet, supra, considered in the light of the facts dealt with respectively, do not support the contention of counsel as to sufficiency of the allegations in the present case. It does not appear that any person attempted to impose upon Mrs. Hill during her illness, or at any other time, for the purpose of influencing her in the slightest degree with respect to the disposition which she would make of her property. The court properly sustained the general demurrer and dismissed the caveat.

Judgment affirmed. All the Justices concur.