Dunn v. Sneed, S90A1593

• Decision Date: 31 January 1991
• Docket Number: No. S90A1593,S90A1593
• Citation: 400 S.E.2d 10,260 Ga. 763
• Parties: DUNN v. SNEED.
• Court: Georgia Supreme Court

Page 10

400 S.E.2d 10

260 Ga. 763

DUNN v. SNEED.

No. S90A1593.

Supreme Court of Georgia.

Jan. 31, 1991.

Bobby Lee Cook, Jr., Cook & Palmour, Summerville, for Dunn.

Rickie L. Brown, Minor, Bell & Neal, P.C., Dalton, for Sneed.

BENHAM, Justice.

This is an appeal from a judgment based on a jury verdict for the caveator in a will contest. The propounder of the will was Dunn, a sister of the testatrix, and the caveator was the testatrix's nephew, Sneed. The grounds of the caveat were lack of testamentary capacity and fraud. The testatrix was in the hospital because of cardiac problems at the time the will was made, and the caveator contended that the testatrix was rendered incapable of forming a testamentary intent because she was disoriented by pain and drugs. Appellant complains that the evidence of lack of testamentary capacity was insufficient to overcome the prima facie case the propounder made, entitling the propounder to a directed verdict. We disagree and affirm.

Appellant relies largely on this court's rulings in Beman v. Stembridge, 211 Ga. 274, 85 S.E.2d 434 (1955):

[T]he condition of the testator's mind at the time of the execution of the will determines whether he can make a valid will. [Cit.] "As tending to illustrate the mental condition at that time evidence of such condition at other times may be received; but where it is sought to establish testamentary incapacity by such evidence, it does not controvert the positive testimony of the subscribing witnesses unless it would be proof of testamentary incapacity at the time the will was signed." [Cits.]

Appellant contends that the only evidence concerning the condition of the testatrix's mind at the time of the will was that she was alert and competent. Under appellant's view of the evidence, the caveator's evidence related only to other times than the time the will was signed and, although admissible, "it does not controvert the positive testimony of the subscribing witnesses...." Id.

A careful review of the transcript in this case reveals that appellant's view of the evidence is mistaken. First, it is questionable whether there was any positive evidence of the subscribing witnesses for appellee-caveator to overcome. Only two of the witnesses to the signing of the will testified. One, the attorney who stated that he believed he drafted the will, testified that he had no real memory of the events surrounding the signing of the will, although he did remember going to the hospital for that purpose. He did testify, however, that it was his policy to ensure that the person signing was competent before permitting that person to execute the instrument. The other witness who testified was one of the testatrix's doctors. His recollection was that he was asked to witness the signature only, not the testatrix's capacity at the time she signed the will.

Even assuming that the testimony of the subscribing witnesses, together with the testimony of the propounder, the propounder's husband, and a friend of the testatrix to the effect that the testatrix was alert and competent, was sufficient to make out a prima facie case, the evidence presented by...