9. "Though it is better for him not to do so, it is not usually cause for a new trial that the judge gives in charge to the jury an entire statutory or Code provision, a part of which is applicable and a part inapplicable to the case under consideration." Thompson v. Mitchell, 192 Ga. 750 (2) ( 16 S.E.2d 540). 10. The court did not err in charging the jury as complained of in the sixth and tenth grounds of the amended motion for a new trial.
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, ยง 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
4. "Though it is better for him not to do so, it is not usually cause for a new trial that the judge gives in charge to the jury an entire statutory or Code provision, a part of which is applicable and a part inapplicable to the case under consideration." Thompson v. Mitchell, 192 Ga. 750 (2) ( 16 S.E.2d 540); Pippen v. State, 205 Ga. 316, 317 (9) ( 53 S.E.2d 482). 5.
It is immaterial that testimony of Propounder and of a doctor who did not treat Ms. Horton may have authorized a finding in Propounder's favor. Only the testimony favorable to Caveator need be considered, because the sole question before us is whether there is sufficient evidence to sustain the jury's verdict. Thompson v. Mitchell, 192 Ga. 750, 752, 753 ( 16 S.E.2d 540) (1941). Because the evidence was clearly sufficient in this case, we affirm the judgment entered on the verdict of the jury.
However, the mere fact that the charge on this statute was not relevant to the issue for decision, is not, of itself, grounds for reversal. See Thompson v. Mitchell, 192 Ga. 750 (2) ( 16 S.E.2d 540) (1971); and Central of Georgia R. Co. v. Sellers. 129 Ga. App. 811, 816 ( 201 S.E.2d 485) (1973), dealing with charges on irrelevant portions of statutes. The trial court's charge to the jury on the provisions of this statute, when viewed separately, or in light of the whole charge, was not inflammatory and we do not believe it prejudiced appellant's case.
On the contrary, the facts of this case show that the testatrix' disposition of her property was natural and normal. As was said in Bianchini v. Wilson, 220 Ga. 816, 817 ( 141 S.E.2d 889), "In the full-bench case of Thompson v. Mitchell, 192 Ga. 750, 751 ( 16 S.E.2d 540), where the only evidence to support a charge of undue influence was that a father bequeathed his estate to one child, giving to the others a dollar apiece, it was held that the trial judge did not err in directing a verdict in favor of the propounder on the issue of undue influence. We recognize the familiar holdings, that, in cases where a caveat attacks a will as induced by undue influence, the jury may consider, along with other circumstances, the question of whether the disposition of the testator's property as provided by the will is unnatural or unfair.
Code ยง 110-104; Northwestern University v. Crisp, 211 Ga. 636, 647 ( 88 S.E.2d 26). There was evidence in the present case on the question of insanity of the testator which raised an issue of fact as to his testamentary capacity. Thompson v. Mitchell, 192 Ga. 750 ( 16 S.E.2d 540). This issue should have been submitted to the jury, and it was error to direct a verdict for the propounder. 3. It is asserted in the enumeration of errors that the evidence made an issue of fact as to whether the testator had monomania, in that he believed that he had no relatives except the caveator, whereas he had a number of cousins.
The caveatrix insists that the fact that the testator left the large part of his estate to his wife, the propounder, in preference to the caveatrix, who was his daughter, and her children was of itself sufficient proof of undue influence. In the full-bench case of Thompson v. Mitchell, 192 Ga. 750, 751 ( 16 S.E.2d 540), where the only evidence to support a charge of undue influence was that a father bequeathed his estate to one child, giving to the others a dollar apiece, it was held that the trial judge did not err in directing a verdict in favor of the propounder on the issue of undue influence. We recognize the familiar holdings that, in cases where a caveat attacks a will as induced by undue influence, the jury may consider, along with other circumstances, the question of whether the disposition of the testator's property as provided by the will is unnatural or unfair.
" In division 4 of the opinion, at page 867, it was said: "The evidence is insufficient to show lack of testamentary capacity. Peavy 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, ยงยง 113-202, 113-204, 113-205." The summary of the evidence in Orr v. Blalock, supra, is particularly in point with the evidence in this case, in that it is identical in general character.
Dicken v. Johnson, 7 Ga. 484 (2) (supra); Akin v. Akin, 163 Ga. 18 ( 135 S.E. 402); Martin v. Martin, 185 Ga. 349 ( 195 S.E. 159). While it is necessary when the question of mental capacity is raised that such capacity be shown to have existed at the time the contract was made ( Thomas v. Lockwood, 192 Ga. 437, 31 S.E.2d 791), yet this may be done by evidence of mental condition for a reasonable period of time both before and after the execution of the contract. Thompson v. Mitchell, 192 Ga. 750 ( 16 S.E.2d 540); Renfroe v. Hamilton, 193 Ga. 194 ( 17 S.E.2d 709). In the present case, the burden is upon the defendant, after it has been shown that the plaintiff was adjudicated insane by a court of competent jurisdiction in 1924, to rebut the presumption of a continuance of insanity and to show that he was sane at the time he executed the deeds in question.