Dennis v. Weekes , 46 Ga. 514 ( 1872 )

Montgomery, Judge.

The first question which I will consider in this case is, were the sayings of Weekes to Mr. and Mrs. Dennis properly rejected as evidence in chief? Weekes was the propounder of the will and a legatee under it, at least to the extent of an acqui|fance in full for debts he may have incurred to the testa® during his long management of his property, which seems to have been continuous from 1854 to 1869, in which last mentioned year the testator died. The facts of this case, so far as applicable to the admissibility of this evidence, are closely analogous to those in Morris and wife vs. Stokes, administrator, 21 Georgia, 552, where the same question arose, with the exception that the present case is stronger in favor of the admission of the evidence than that, in this: then the party charged with using undue influence, and whose declarations the caveators proposed to offer in evidence, was only a legatee, not the executor or propounder of the will, and indeed not even a party — except in so far as the propounder may have represented his interests. There, as here, the party admitted that he did procure the will to be made, but it was for the purpose of preventing the inheritance from taking a direction which it could not have taken, and which, in this case certainly Weekes must have known it could not take. The objection to the evidence in 21 Georgia seems to have been upon the- ground that the legatee, whose sayings it was proposed to admit, was neither the propounder, nor even a party. Judge Lumpkin says, on page 569, “we are called on, for the first time, to decide this question. It has become a settled rule of this Court that the admissions of the propounder of the will, who is also a legatee for a large amount, may be proven.” Here Weekes is propounder, party and legatee. Whether he takes a large amount or not could be better known if his accounts had been before the Court. The presumption, however, is that he does, as he “ made him (the testator) make the will,” in the language of the witness, Mrs. Dennis, and however necessary it may have been, in his opinion, to have a will made for the purpose of disinheriting the bastard issue of a deceased idiot daughter of the testator, surely it was not necessary for that purpose to insert a clause exonerating himself from any liability he may have incurred in the management of the testator’s property. If he had felt conscious that he had incurred no liability, the exonerating clause would hardly have been inserted. This, of course, assumes the testimony of Mr. and Mrs. Dennis is true, to-wit: that Weekes made the testator make the will. The declarations of Weekes were excluded as general evidence on the ground (as we learn from the brief of counsel for plaintiff in error) that Weekes had no power to bind the legatees and, therefore, they were immaterial. But this very objection was made to just such evidence in a caveat to a will in Harvey et al. vs. Anderson, 12 Georgia, 69, and overruled. Judge Warner, in delivering the opinion, says: “ Were the admissions of Anderson, who was the propounder of the paper offered for probate, the nominated executor therein, and a legatee under the same, competent evidence for the consideration of the jury at the trial? The general rule is, that the declarations of a party to the record, or of one identified in interest with him, are, as against such party, admissible in evidence, and this general rule, admitting the declarations of a party to the record in evidence, applies to all cases where the party has any interest in the suit, whether others are joint parties on the same side with him or not, and howsoever that interest may appear, and whatever may be its relative amount.

“ The argument against the admission of this testimony is, that it will have the effect to enable a party to the record, who has a small legacy under the will, by fraud and corruption to make admissions which may destroy other legacies under it ten times greater than his own * * *.

“ Although the other legatees, under the paper offered for probate, might have a larger interest under it than the propounder of it, who is a party to the record, seeking to establish it not only for his own benefit but for theirs also — still they are identified in interest with him, and the general rule of evidence is applicable to him and them.”

But we think that section 2402 of the Code fairly covers the question under consideration and makes the testimony admissible. Here, then, is “ an issue of devisavit vel non,” in which one of the grounds of caveat is, that the executor did, by fraud and deceit, and fraudulent and false representations, prpcure the testator to make the will — be is both legatee and executor. His admissions are made after qualification. They purport to show that he procured the will to be made by a false representation to the testator, to-wit: that if it was not made his bastard grandchild would inherit.

The important part of the testimony of Mr. Dennis, which was excluded as evidence-in-chief, is as follows : “Weekes then said he went and told him (testator) he ought to make a will to protect his estate against this illegitimate child; and told him if he did not, the child would come iu for a part of the estate; aud that Stallings acted on his representations and made a will — that he, Weekes, suggested the writer and the witnesses.” This evidence certainly fulfills the remaining requirement of the section — it is relevant to the issue — which is, did Weekes, by false representations, induce the testator to make the will ? And I will state here, lest I forget it, the weight of the evidence shows that the testator was, at the time of making his will, and had been for some fifteen years or more prior to his death, of very weak mind, (indeed it is very doubtful whether he was sane,) and entirely under the influence of Weekes. Under such circumstances much less evidence will be sufficient to set aside a will on the ground of undue influence than if the testator were in full possession of all his faculties: 1 Jarman on Wills, 37 to 42. And henee the importance, in such cases, of submitting to the jury evidence like that under consideration. In this connection, it may be well to state that Weekes’ own testimony shows his was the dominant mind in the management of the business of Stallings — for when the latter drew a draft upon him for $3,000 in favor of his other son-in-law, he, Weekes, according to his own testimony, refused to pay it, and then persuaded Stallings to acquiesce in the refusal upon the ground that he was getting old and his children might desert him.

We think the evidence was clearly competent. Does the admission of it, for the purpose of impeaching Weekes, give the caveators the full measure of their rights? As impeaching testimony, it could legitimately have but a negative effect, so far as the issues made by the caveat are concerned. It simply tended to prevent Weekes’ evidence from proving the falsity of the charges made by the caveat, and the jury could only consider it for one purpose, to-wit: to ascertain whether Weekes was worthy of credit or not. “The legitimate object of the proposed proof is to discredit the witness2 Brod. and Bing., 313. I have shown, I think, that, as evidence in chief, it was important as tending to establish, affirmatively, the truth of one or more of the(charges made by the caveat.

2. We also think the evidence of the Confederate conscripting officer, Leonard, was improperly rejected as evidence in chief. The evidence admitted upon the point of the influence of the executor in having the will made, (the depositions of Ellen Hill,) as well as the evidence on this point, which we hold was improperly rejected as evidence in chief, (the declarations of the executor to Mr. and Mrs. Dennis,) tends to show that the executor did exert influence to have the will made. And this is not contradicted by any one but himself; even one of the subscribing witnesses, who was draftsman of the will, states that “Weekes seemed very anxious about it.” In view, then, of the evidence that was admitted, and of that which we hold ought .to have been admitted, tending to show the influence of the executor in procuring the will-to be made, we think that evidence, showing a knowledge on the part of Weekes of the weak state of the testator’s mind, was legitimate for the consideration of the jury as evidence in chief, to have more or less weight, as they may or may not believe that weak state of mind to have continued up to the time of making the will. If, at that time, the testator was so unsound in mind as to be incapable of attending to his own business, which the executor knew, and the latter exerted his influence over him, which was shown to be very great, to induce him to make a will very much in his (the executor’s) own favor, it would be difficult to see how the jury could refuse to set the will aside, if they believed the witnesses who swore to such facts. The tendency of this evidence is to bring the case within the principle laid down in Martin vs. Teague, 2 Speers, 268, as quoted by Mr. Jarman, (1 volume, 39,) to-wit: “That undue influence, to avoid a will, must be a control intentionally exercised by one mind over the will of another, so as to deprive the other of the free agency of option j” though, perhaps, any influence whicli tooh away the free agency of the testator would invalidate his will. If the testator is not a free agent, the papier can hardly be called his will.

3. It seems to have been conceded that the paper in the handwriting of the executor, and made in 1857, was good evidence in chief to show the amount of the testator’s property, at that time in the hands of Weekes, as his agent, and as evidence going to ascertain what amount of interest he took under the will. It was ruled out, however, because not offered before the propounder had closed and the caveators were tendering evidence in rebuttal, the Judge holding that it came too late. The case of Rolfe vs. Rolfe, 10 Georgia, 143, and more especially that of Parker vs. Johnson, 25 Georgia, 576, would seem to entitle the caveators to introduce the evidence at the time it was offered. It was, therefore, error in the Court to reject it.

Judgment reversed.