Cook v. Washington , 1928 Ga. LEXIS 304 ( 1928 )

Gilbert, J.

Wills have always been a fruitful source of litigation. It would be unnatural if one’s claim to testamentary benefaction should not weigh heavily in the mind of the claimant, and that an adverse disposition should not seem unreasonable and unjust. Indeed, the latter is calculated in many instances to produce the perfectly honest opinion that the disposition made is convincing evidence that the testator was mentally unbalanced and without testamentary capacity, or that undue influence substituted the will of another for that of the testator. Slight facts assume exaggerated importance, casting suspicion upon very worthy and natural acts and motives. No one may justly complain if a testator, having testamentary capacity, shall freely and voluntarily execute a will devising or bequeathing his property agreeably to his own wishes alone, if not contrary to law. Civil Code (1910), §§ 3832, 3834, 3838. The very nature of a will requires that it be freely and voluntarily executed. Pennington v. Kerrigan, 159 Ga. 345, 350 (125 S. E. 795).

The testatrix in this case was an aged, wealthy widow. She had no children. With her husband she had been actively engaged in business pursuits for many years, sharing with him the direction and responsibilities of conducting banking and hotel businesses, the ownership and control of extensive farm lands, and apparently other business affairs. /Certainly they had'together, by close attention and good business judgment, amassed a fortune quite unusual for their day and in their theatre of action. It is clear from the evidence that she had for many years indulged “a dream” of philanthropy; that from the fruits of an active business life she would transmit a blessing to the mountain children of the northern section of her beloved Georgia. The principle of the Christian religion »had laid strong hold upon her. Thus she hoped that her life would not have been in vain; that the blessings she had received, that the rich reward which had. come to her, through her toil and vision, would live after her. In these “dreams” her husband fully shared. Their plans were jointly made and in' perfect accord. Before his death Mr. Hunt, the husband, had expressed a wish to so provide by testamentary disposition of his estate, but, owing to legal complications due to imminent death, he declared to an attorney, in the presence of Mrs. Hunt, after a discussion of the subject with her, that if the validity of leaving more than a certain part of his estate depended upon her consent after his death, he would “just let her fix it.” In her will she faithfully carried out. the joint plan and purpose. Mrs. Hunt also evidenced in -her life and in her will her devotion to Brenau, her alma mater. Her motor-trip of about ,500 miles to Florida shortly before her death was in the interest of a Brenau endowment, and the trip doubtless hastened the end of her days. Previously she had-been the benefactor of Brenau, and by both speech and performance' had ■evidenced the abode of one of her dreams. Being childless, she had very humanly showered affection upon the child of another, •Edgar B. Dunlap. A witness, close friend of Mrs. Hunt, testified: “She mentioned Mr. Dunlap’s name, Mrs. Dunlap and the children. She was very fond of Mr. Dunlap. ''She had talked about him, in fact. When I worked at the Gainesville Drug Store she talked to me about him, and when I worked in the lobby she has talked to me about loving Ed and Kitty and the children. She said she loved Ed as good as she could her own son, because, she said, I was present when he was first born, and was the first person that had him in their' arms/ and she says, He is as near to me as my own son/ and it was a constant thing that she was talking about him being so good to her.”

Another witness testified that on one occasion when Mr. Dunlap approached, Mrs. Hunt declared, “There goes my boy.” That Mrs. Hunt called for Dunlap to write her will, remembered his past services, bequeathed bounties to his children for their education, and made provision in her will as recompense for his services, were not indications of mental weakness or of undue influence. It was evidence of her sense of justice and her sentiment of affection which had endured without a break. from the very birth of Dunlap, whom she regarded, in her affections, as her own child-§Owing to the manifold interests of the Hunts and to the fact that no child, or perhaps because no near relative, was available, Henry Washington generously and freely rendered valuable services. Mrs. Hunt declared that he even purchased farm property from her for which he had no need, but really to place much needed cash in her hands, because it worried her to borrow. If this is true, it was an act of loyal friendship which should have bound her to him with hoops of steel. As to her he was like unto one who “swearetli to his own hurt and changeth not.” Whether true or not, it was her belief, and in such circumstances the making of Washington executor of her will was no evidence of mental incapacity or of undue influence. It was an act of gratitude for past favors, .by one convinced of Washington’s ability because of proved fitness. Much stress is laid upon her bounties to Dunlap and Washington; upon her private interviews with them, to the exclusion of all- others, when- discussing with them the making of her will. Properly viewed, these acts are consistent with sound judgment and reason. Interviews, such as those mentioned in the evidence, especially with regard to making a last will and testament, would seem to require privacy. The contrary would appear unnatural and unusual, more especially upon the part of an aged woman, much enfeebled and subject to painful heart attacks. Certainly in the solemn moments when determining the disposition of her property after her death, it was no time for receiving guests whose advice had not been solicited, however close the ties may have been.

It is argued that she drank intoxicating liquors and was addicted to narcotic drugs. As already stated, she was an aged woman, physically weakened by disease. She suffered from high blood pressure, and angina pectoris. Her attacks caused intense pain. Her physician advised her to keep whisky on hand and to use it when necessary. He administered drugs to alleviate her suffering. It is not within the proprieties of this opinion for us to express any view as to the moral or legal aspect of the physician’s advice. There is no evidence which would authorize the jury to find that either intoxicants or. drugs had rendered the testatrix mentally incapable of making a valid will. Neither would they show undue influence on the part of persons who merely furnished or prescribed them. All of the attesting witnesses and three physicians who knew her and had treated her testified that she possessed an unusually strong mind. The attesting witnesses and one of the physicians swore that she was perfectly sane and calm at the time the will was executed. Another physician saw her an hour or two before she died, and swore to her sound mind. Many others who knew her in business and as employees unite in testifying to her sanity. It would be difficult to make a stronger case of complete mental capacity and freedom from the undue influence of others. The caveators introduced Erwin B.. Ledford as a witness, and proved by him that he was with Mrs. Hunt just after the Oglesby incident, the day the will was executed, and that he saw no whisky and no evidence of drunkenness except in the case of Oglesby, and that Mrs. Hunt “didn’t seem at all excited.” He was with her again the next day, the day of her death. He swore: “I never did see anything wrong with Mrs. Hunt’s mind; she was about as smart a business woman or 'man as I ever saw, . . could plan more between Saturday night and Monday morning than any dozen men I ever saw, and it was done right.” This witness was in charge of hotel improvements for Mrs. Hunt, to the extent of about $100,000. Caveators introduced C. C. Staton as a witness, and proved that he had known Mrs. Hunt ever since he was a boy and “never did see anything wrong with her mind.” He did not see her “after the day she was operated on.” Homer Gailey was sworn by the caveators, and said he had talked with Mrs. Hunt about her plan for endowing an industrial school two or three months before her death; that “she was a woman of very extraordinary mind.” The depositions of Mrs. Swain were taken by the caveators, but were introduced by the propounder. She had worked in the hotel owned by Mrs. Hunt, which was Mrs. Hunt’s residence. She knew her well, had frequent conversations with her; and shortly before her death witness took an automobile trip with her when she discussed her plans for the future. Mrs. Hunt called witness on Monday night after the will was signed, and the witness saw her several times the next day, which was the day of her death. Mrs. Swain swore: “I didn’t see anything at all wrong with her mind. . . She seemed very calm to me in her business matters. She wasn’t a woman you could excite easily— if anything happened she was very calm. . . Did not notice any excitement about her voice when she called Monday night about her supper — didn’t notice anything wrong or unusual.” Thus it is seen that caveators introduced several witnesses whose testimony counteracts the testimony of other witnesses they introduced.

What appears as a conflict consists of the opinions of non-expert witnesses who were not present at the time the will was executed; and when the facts upon which these opinions were based are examined, no real conflicts appear. “Where there is no conflict in the evidence, and that introduced with all reasonable deductions or inferences therefrom demands a particular verdict, the court may direct the jury to find for the party entitled thereto.” Civil Code (1910), § 5926. Giving to the caveators the benefit of the most favorable view of the evidence as a whole and of the legitimate inferences therefrom, the verdict in favor of setting up the will was demanded. “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.” Sanders Mfg. Co. v. Dollar Savings Bank, 110 Ga. 559 (2) (35 S. E. 777); Skinner v. Braswell, 126 Ga. 761 (2) (55 S. E. 914); Walters v. Walters, 151 Ga. 527, 530 (107 S. E. 492). In the last-cited case, where a physician who had known the testator all of his life testified that the testator had Bright’s disease, and that the physician didn’t believe “he would be a man of sound mind enough to write a will,” this court affirmed the direction of a verdict setting up the will. The test is whether the testator was mentally incapable or was unduly influenced at the time the will was signed. Brown v. Kendrick, 163 Ga. 149, 168-9 (135 S. E. 721), and cit. “Undue influence which operates to invalidate a will is such influence as amounts either to deception or to force and coercion, destroying free agency.” Bohler v. Hicks, 120 Ga. 800 (5) (48 S. E. 306) : Potts v. House, 6 Ga. 324 (50 Am. D. 329) ; Thompson v. Davilte, 59 Ga. 472 (3). Not all persuasion or influence'is “undue.” DeNieff v. Howell, 138 Ga. 248 (6) (75 S. E. 202); Burroughs v. Reed, 150 Ga. 724 (105 S. E. 290); Ricketson v. Ricketson, 151 Ga. 540, 544 (107 S. E. 522); Ward v. Morris, 153 Ga. 421 (3) (112 S. E. 719).

The will makes numerous bequests to her relatives, while leaving the bulk of her estate to Brenau, her alma mater, and to the University of Georgia, 'that oldest of chartered State universities, from whose classic halls so many sons have gone forth to shed lustre upon their State. She remembered her church and the Baptist Orphans Home, her physician, her nurse, her business employee, her former maid. She provided for the establishment of six scholarships in Brenau and the University of Georgia for named girls and boys. She devised a large tract of land in Hall County to the University of Georgia, to be used as a memorial to her late “beloved husband, James H. Hunt,” upon which there should be established an “Industrial School” for the “mountain boys of North. Georgia,” or in lieu thereof that the land should be sold and the -proceeds used as “a loan fund for worthy North Georgia boys and known as the James H. Hunt Loan Fund.” She also provided that two fifths of the residue of the estate be administered by the trustees of said university for the loan fund. To read the will, which heretofore appears in full,- is to be convinced that Mrs. Aurora Hunt was not only possessed of a great mind but also of a great heart; that her heart burned to shed the light of education, the power of knowledge, among the girls and boys of north Georgia. Let the light of education, the light of a new day, shine in the mountains. The evidence so demands, and the court did not err in so directing.

Judgment affirmed.

All the Justices concur, except Russell, G. J., disqualified, and Ilines, J., dissenting.