Foster v. Smith

24 S.E.2d 202, 195 Ga. 338, 1943 Ga. LEXIS 494

Opinions

Verdict for the plaintiff in action to cancel deed for fraud and undue influence in obtaining its execution was authorized, although the evidence was conflicting. Refusal of new trial was not error. DUCKWORTH, J., dissents.

Nos. 14380, 14387. JANUARY 12, 1943. REHEARING DENIED FEBRUARY 12, 1943. Mrs. Lucy Lowe Smith brought suit against Mrs. Agnes L. Foster, and joined as a defendant Judge Paul S. Etheridge as executor of the estate of Mrs. Whitney. It was alleged, that on March 22, 1943, Mrs. Ida II. Whitney made a will in which she left to petitioner her home place in Hapeville, Georgia, and certain of the furniture therein; that Mrs. Whitney died on March 30, 1939; that petitioner was informed that on March 30, 1939, Mrs. Foster filed for record in the clerk's office of the superior court a paper in the form of a deed dated November 19, 1938, purporting to be a conveyance from Mrs. Whitney to Mrs. Foster of her home place in Hapeville, and the furniture and furnishings therein, it being the identical property devised and bequeathed to petitioner in the will of Mrs. Whitney, which was duly probated; that at the time said deed was made Mrs. Whitney did not have mental capacity to make it, and that its execution was brought about as the result of fraud and undue influence practiced upon her by Mrs. Foster.

In evidence was the will of Mrs. Whitney, executed on March 22, 1934, and probated, in which Mrs. Smith, the plaintiff, was devised and bequeathed this property.

The case was tried three times. The first was a mistrial. The second trial resulted in a verdict for the plaintiff. A new trial was granted. The third trial likewise resulted in a verdict for the plaintiff, finding that the deed was void.

To the overruling of her motion for new trial Mrs. Foster excepted.

Mrs. Smith filed a cross-bill of exceptions to certain rulings which took place during the trial. The special grounds of the motion for new trial complain: (1) That the court, over objection, refused to permit the movant to introduce in evidence an alleged copy of a will made by Mrs. Whitney in 1924. (2) That over objection Judge Paul S. Etheridge testified affirmatively, in answer to the question, "You were to receive $10,000 under the will of Mrs. Whitney, weren't you?" (3) That the court submitted to the jury the issue of fraud, and (4) the issue of undue influence.

There was evidence that Mrs. Whitney, approximately 86 years old, on April 3, 1938, received a fall as the result of a paralytic stroke, which fractured her hip, and that she remained in bed practically helpless from that time until her death; that she had theretofore made a will in which Mrs. Smith, the petitioner, was devised and bequeathed this property; that Judge Paul S. Etheridge, before going on the bench, had been her attorney in many matters, and remained her confidential advised, and was the executor of her will; that the defendant Mrs. Foster, for many years Judge Etheridge's secretary, after Mrs. Whitney's fall, at the direction of Judge Etheridge, made frequent visits to the home of Mrs. Whitney, employed the servants, paid them, and supervised the details of Mrs. Whitney's household affairs; that before her illness Mrs. Foster had been a traveling companion of Mrs. Whitney on several long trips; that she was almost daily at Mrs. Whitney's home from the time of her fall until the date of her death. The evidence as to Mrs. Whitney's mental condition at the time of the execution of the instrument the plaintiff sought to set aside was in conflict, there being evidence tending to show that at the time of its execution she was of exceedingly weak mentality. Although the truthfulness of it was denied by Mrs. Foster, it was in evidence that Mrs. Foster had made the statement that she "had something terrible on Mrs. Whitney, and could make her do anything in the world she wanted her to do," this statement having been made when, according to the witness, Mrs. Whitney "was lying there prone, helpless, and insensible." There was proof that Mrs. Foster telephoned to those who witnessed the deed, for the purpose of having them witness it; that Mrs. Foster was present when it was signed; that Mrs. Foster was with Mrs. Whitney immediately before it was signed and before the witnesses were brought into Mrs. Whitney's room for the purpose of having her execute it in their presence.

The following excerpts are quoted from the record: Eugene King, a notary public and one of the subscribing witnesses, testified: "In going back to Mrs. Whitney's my wife and I went in my car, and Mrs. Foster went in her car. When we got there, I could not say that Mrs. Foster went in the house first. I imagine she would. As to not being admitted to Mrs. Whitney's presence or her room when we first went in the house, she didn't say anything about not admitting us to her room; she went in there and found that Mrs. Whitney was asleep, and we sat around there a little while and talked maybe about half an hour. The reason that I know that Mrs. Whitney was asleep was because Mrs. Foster told me so, and I think, as I said a minute ago, that Mrs. Foster then went back into the room and said to the group of us that she was awake. . . I did testify previously, `We sat around there a short period of time, and finally Mrs. Foster went alone back into Mrs. Whitney's room, and she stayed in Mrs. Whitney's room for a few minutes.' That is my testimony now. Mrs. Foster was the first one that went into Mrs. Whitney's room after she woke up. She went into the room first, and then came back and told us that Mrs. Whitney was asleep, and we sat around there for maybe half an hour, I don't know how long it was, and she went back into the room and found that Mrs. Whitney had woke up, and we all went in the room to execute the paper."

Mrs. King, a witness for the defendants, on cross-examination by the plaintiff's counsel, testified: "You ask me if I did not testify as follows on a former trial: `As to whether we were not then by Mrs. Foster asked to go into Mrs. Whitney's sleeping-room — Mrs. Foster went into Mrs. Whitney's room and Mrs. Whitney was asleep.' Well, as I told you then, I just really didn't remember whether Mrs. Foster or Emma announced that she was asleep. You ask me if my testimony previously was, `Mrs. Foster went into Mrs. Whitney's room by herself.' I guess if it is that, it is that. You asked me to refresh my memory from that testimony. Yes, my recollection now is that it was Mrs. Foster went in. I did not see Mrs. Whitney asleep. I would say she was asleep about twenty or twenty-five minutes, when Emma came back in and said that Mrs. Whitney was awake. When Emma said that, we did not go immediately into the room. Mrs. Foster went in then. Mrs. Foster alone then went into the room and stayed approximately ten or fifteen minutes, and then came back out of the room and said that she was all ready now, they were ready, to come into the room, they were ready." Mrs. Foster testified, in effect, that she knew nothing of the purpose of Mrs. Whitney to make her a deed until the day before, when the scrivener of the deed so informed her. There was testimony from Judge Etheridge, to the effect that he had the deed prepared by his son at the instance and request of Mrs. Whitney, and that at that time she was in full possession of her mental faculties. The deed was made for the recited consideration of "love and affection and in further consideration of the invaluable services rendered of a long period of years." It was not read to or by Mrs. Whitney in the presence of the subscribing witnesses when she signed it by merely making her mark, nor was anything said to or by her, at the time of its execution, as to what was the nature of the instrument. It was not recorded until the day after the night of Mrs. Whitney's death, at which time Mrs. Foster sent it to the clerk's office for record. 1. No error appears, under the facts of this case, in the ruling of the court sustaining an objection to the admission in evidence of a copy of an original writing, to wit, a previous will that had been revoked, on the ground that the absence of the original had not been accounted for; there being no notice to produce, and the evidence as to the existence and loss or destruction of the original not being such as to compel the conclusion that the same was not in existence, or, if it was, that due diligence to obtain the same had been exercised.

2. It is not cause for the grant of a new trial that counsel for the plaintiff was permitted, over objection that the question was irrelevant and immaterial, to ask a witness the question, "You were to receive $10,000 under the will of Mrs. Whitney, weren't you?" and to permit the witness to answer in the affirmative, when it appears that without objection the will itself was introduced in evidence and disclosed the facts above referred to.

3. Under the issues made by the pleadings and the evidence it was not erroneous for the court to submit to the jury the issues of fraud and undue influence; the record disclosing that more than four years before the date of the deed under attack, at a time when the strength of the maker was unimpaired physically or mentally, she executed a will, which was subsequently probated, in which will she devised and bequeathed to the petitioner the property in dispute; that on April 3, 1938, when about eighty-six years of age, she sustained a fall after a paralytic stroke, as a result of which she remained practically helpless and in bed until the day of her death, March 30, 1939, and that the plaintiff in error visited her almost daily, and superintended the management of her household affairs; the deed under attack being a voluntary deed, and not having been filed for record until the day of the death of the maker; and there being evidence from which the jury could have found that from the day of her fall, April 3, 1938, until her death on March 30, 1939, her mind was weak; evidence that the plaintiff in error was alone with the maker immediately before the execution of the deed, that it was not read to her in the presence of the subscribing witnesses, and when the subscribing witnesses, who were summoned by plaintiff in error for the purpose of witnessing the deed, arrived, the plaintiff in error (Mrs. Foster) "got out the paper" and handed it to one of the subscribing witnesses; and evidence that the plaintiff in error, while the maker was "lying there prone, helpless, and insensible," made the statement that she (Mrs. Foster) "had something terrible on Mrs. Whitney, and could make her do anything in the world she wanted her to do."

4. The evidence on the subject of fraud and undue influence, though conflicting, was sufficient to support the verdict, without reference to that ground of attack which asserted the mental incompetency of the maker; and the verdict having the approval of the trial judge, the judgment refusing a new trial is affirmed.

Judgment affirmed on the main bill of exceptions; cross-billdismissed. All the Justices concur, except