Davis v. Frederick ( 1923 )

Beck, P. J.,

dissenting. I-am compelled to dissent from the judgment of affirmance in this case, being of the opinion that the court below erred in overruling the grounds of the motion for new trial complaining of the instructions to the jury upon the subject of undue influence. Error upon the portions of the charge submitting the question of undue influence to the jury is assigned in several grounds of the motion for new trial referred to in the opinion, and I am of the opinion that each of these grounds should have been sustained by the court because of the lack of evi-" denee to authorize instructions upon that subject. Undue influence, it is true, may be established by circumstantial evidence. Proof of facts or circumstances tending to show that the beneficiaries under the will charged with having exercised undue influence had opportunities for its exercise, had opportunities of practicing upon the fears or weaknesses of the testator to bring about the execution of a will containing provisions in their favor, is admissible to strengthen or give force to any evidence, direct or circumstantial, that may be introduced tending to show that undue influence was actually exerted. But evidence of opportunities for the exercise of undue influence, however strong and convincing, can not take the place of evidence, direct or circumstantial, of the actual employment of undue influence or coercion. Nor will a mere suspicion, however well founded the suspicion is, take the place of evidence.

In the recent work of Daniel H. Bedfearn on Wills and the Administration of Estates in Georgia (1923), in a note to § 46, p. 78, the following is quoted from the case of Hall v. Hall (1868), L. R. 1 P. & D. 481: “ Sir J. P. Wilde, in summing up, gave the following direction to the jury on the question of undue influence: To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like,— these are all legitimate, and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort,- — these, if carried to a degree in which the free play of the testator’s judgment, discretion or wishes is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led but not driven; and his will 'must be the offspring of his own volition, and not the record of some one else’s.” The burden of proving undue influence rested upon the caveators, and evidence having some probative value, either direct or circumstantial in nature, to show that there was actually undue influence used to bring about the execution of the will must be submitted; else the question as to whether the execution of the will was brought about by undue influence can not be submitted to the jury in the court’s charge. There was no evidence of undue influence adduced in this case. I have examined the record carefully and found none. Counsel for the defendants in error, in his brief, sets forth certain evidence which he insists supported his contention that there was undue influence, but 1 find it nothing more than the proof of the existence of opportunities for the exercise of undue influence, or grounds for. suspicion that such was employed, but no evidence, direct or circumstantial, that authorized the submission of the issue to the jury. For that reason I conclude that those portions of the extracts quoted in the majority opinion which submit that issue to the jury were erroneous.