1. There being no evidence showing that undue influence was exercised upon the testator in the execution of the will, the court erred in submitting that question to the jury.
2. The proffered testimony of a witness for the propounder, that bad feeling existed between the testator and one of the witnesses for the caveators, *Page 864 who testified that when he saw the testator on the day the will was executed the testator did not recognize him and did not speak to him, and who denied that the testator was unfriendly towards him because he had testified against the testator in a case in which the testator was a party, was admissible to explain why the testator did not speak to the caveators' witness, and to impeach him as to the feeling existing between him and the testator.
3. The two deeds from the testator to devisees in the will, conveying described lands and reciting a consideration of $10 and love and affection, had no relevancy to the issue on trial, there being no evidence of undue influence, a prerequisite to the allowance of such documentary evidence on that issue; and the proffered deeds were prejudicial and should have been excluded.
4. The evidence on the trial of the case was insufficient to show a lack of testamentary capacity.
No. 14528. MAY 7, 1943. STATEMENT OF FACTS BY DUCKWORTH, J. Edgar H. Camp died, leaving no widow or children, and leaving a will in which he gave his entire estate to Mr. and Mrs. Hubert Lasseter, the will reciting that the bequest was made because of the love he had for them on account of their care and attention his beloved wife during her lifetime and their care and attention to him during the two and a half years of his sickness which made him an invalid. The Lasseters were unrelated by blood to the testator. To the petition of Patrick H. Orr Sr., executor, to probate the will in solemn form the defendants in error, heirs of the testator, filed their caveat. The grounds of the caveat were (a) that the testator did not, at the time of making the will, have "sound mind and memory and was without mental capacity sufficient to make a will;" (b) that the testator did not execute the will freely and voluntarily, but was moved to do so by undue influence and persuasion over him of Mr. and Mrs. Hubert Lasseter and P. H. Orr Sr.; (c) that because of misrepresentations of the Lasseters made to the testator he was imposed upon and caused to believe that the caveators did not care for him, and testator was by such false representations caused to disinherit the caveators; and (d) that the testator, due to old age, disease, and exceeding weakness at the time the will was executed, and divers practices of the Lasseters and P. H. Orr Sr. and other unscrupulous persons, was induced to make the will. *Page 865
The propounders introduced the testimony of two of the four subscribing witnesses, who testified that the other two subscribing witnesses resided without the State of Georgia; that they saw the testator sign the will by making his mark, he being unable to sit up and write his name; that all the witnesses signed in the presence of the testator and of each other; that the will was read to the testator before he signed it; that the testator was of sound mind, rational, and understood what he was doing when he signed the will. The attorney who wrote the will was one of the witnesses, and testified as above and also that he was asked by the propounder to draw the will, and drew it according to the expressed wish of the testator. The propounder testified that he acted on the request of the testator in securing the attorney to draw the will. The testator's physician testified that he saw him on the day the will was executed, or the day before, and that he was rational and his mind was good. Mrs. Hubert Lasseter testified that she had lived in the house with the testator for more than two years, during which time his mind was good, and that she was present when he made the will and that he was entirely rational at that time. The will, containing the usual attestation clause, was put in evidence.
The caveators offered a number of witnesses who testified to having seen the testator before the will was executed, one on Tuesday or Wednesday before it was made on Saturday, another on the afternoon of the day the will was executed, another about four or five days before, another six or eight months before, and another two years before. But none of them saw the testator when the will was made. They testified in general that the testator, when they saw him, was mentally incapable of having a rational desire to dispose of his property. The only reasons given to support this inexpert testimony were that the testator was old, crippled, rambled in his conversations, jumping from one subject to another, and that he did not recognize the witness who saw him on the afternoon of the day the will was executed, although the witness had seen him and associated with him many times theretofore. This witness under cross examination admitted that he had testified as a witness against the testator in 1940, but said he did not think the testator was offended at him because of such testimony. *Page 866
One witness testified that more than two years before the will was executed Mr. and Mrs. Lasseter made great display of affection for the testator, had their child kiss him good night, and they or one of them stayed with him and thus made it impossible for others to see him alone.
The verdict was in favor of the caveators. To the judgment overruling his amended motion for new trial the propounder excepted. I. The third special ground excepts to the charge submitting the question of undue influence. It is contended that there was no evidence to warrant a finding of undue influence, and that hence it was error to charge on this question. It is reversible error to charge on undue influence when there is no evidence to show that undue influence was exerted upon a testator, resulting in his making the will.Martin v. Martin, 185 Ga. 349 (195 S.E. 159);Crutchfield v. McCallie, 188 Ga. 833, 839 (5 S.E.2d 33);Thompson v. Mitchell, 192 Ga. 750 (16 S.E.2d 540);Bloodworth v. McCook, 193 Ga. 53 (2) (17 S.E.2d 73). Evidence which does no more than show opportunity to influence falls short of "undue influence" as defined in the Code, § 113-208, and in Martin v. Martin, and Crutchfield v.McCallie, supra. Here the caveat alleges that the will is the result of undue influence exerted upon the testator by Mr. and Mrs. Lasseter and P. H. Orr Sr. The only evidence offered to sustain this ground is that of the witness Camp, who testified, with reference to the Lasseters, that they went to the home of the testator in August before his wife died in October; that he and his family were living with the testator at the time; that "after they moved in they were very solicitous toward Mr. and Mrs. Camp, and they would run around and wait on Uncle Edgar, and have the little girl kiss him before he went to bed. They hovered over him at his bed, but they did not do much for him, and my aunt waited on him all the time when she could, and they had a negro man to do all the heavy work around the sick-room. My aunt paid him; the Lasseters did not have anything to do with paying him. After my aunt died my family and I stayed there two months. After my aunt died, with reference to their attitude toward Mr. Camp *Page 867 — they took complete charge. If I would walk in the room it would be either one or three of them in there. They always hovered around and noticed that neither me nor my wife were in the room by ourselves, and they wouldn't let any of his old friends see him if they could possibly help it, especially talk with him." This testimony related to conduct more than two years before the will was executed; but if it had been at the time, there is nothing to show undue influence. Had the testator been influenced thereby, it would not have invalidated his will, since it was neither improper nor undue influence. Boland v. Aycock,191 Ga. 327 (12 S.E.2d 319). The charge was not authorized by the evidence.
2. The second special ground complains because the court excluded the testimony of a witness for the propounder, Mrs. Lasseter, that she hated to say, but the feeling between the testator and the caveators' witness, Otis Camp, was quite bad. Otis Camp testified for the caveators that when he saw the testator on the day the will had been executed the testator did not recognize him and did not speak to him, and he denied that the testator was unfriendly toward him because he testified against the testator in 1940. The rejected evidence was admissible to explain why the testator did not speak to the witness, and to impeach him as to the feeling existing between them. Code, § 38-1802. It was error to exclude this testimony.
3. The first special ground excepts to the allowance in evidence of two deeds from the testator to devisees in the will, conveying lands and reciting consideration of $10 and love and affection. The deeds had no relevancy. There was no evidence of undue influence, which is a prerequisite to the allowance of this evidence on that issue. The evidence was prejudicial, and should have been repelled. Code, § 113-106.
4. The evidence on another trial might not be the same. But in order that useless waste of time may be avoided, we will now rule on the general grounds. The evidence is insufficient to show lack of testamentary capacity. Peavey v. Crawford, 182 Ga. 782 (187 S.E. 13, 107 A.L.R. 828); Griffin v. Barrett,183 Ga. 152 (187 S.E. 828); Hill v. Deal, 185 Ga. 42 (193 S.E. 858); Thompson v. Mitchell, 192 Ga. 750 (16 S.E.2d 540);Scott v. Gibson, 194 Ga. 503 (22 S.E.2d 51); Code, §§ 113-202, 113-204, 113-205. There was no attempt to prove that the testator had been made *Page 868 to believe that the caveators were unfriendly to him by any representation, false or otherwise, by devisees or any other persons.
Judgment reversed. All the Justices concur.