Heard v. Lovett, S00A1631.

Citation273 Ga. 111,538 S.E.2d 434
Decision Date06 November 2000
Docket NumberNo. S00A1631.,S00A1631.
PartiesHEARD v. LOVETT.
CourtSupreme Court of Georgia

OPINION TEXT STARTS HERE

Stanley M. Lefco, Atlanta, for appellant.

Arrington & Hollowell, Stanley E. Foster, Atlanta, for appellee.

CARLEY, Justice.

After James Lovett (Decedent) died, the probate court appointed his brother Samuel Lovett (Caveator) as the administrator of the estate. Some months later, Richard Heard (Propounder) filed a petition to probate in solemn form the alleged last will and testament of Decedent. Caveator filed a caveat, asserting that the testator's signature on the will was a forgery. After a bench trial, the probate court found in favor of the Caveator and denied probate. Propounder appeals from that judgment.

1. Citing Mobley v. Lyon, 134 Ga. 125, 67 S.E. 668 (1910), the probate court required that Caveator only rebut Propounder's prima facie case, rather than disprove it affirmatively. Propounder contends that, by so doing, the probate court placed erroneous evidentiary burdens upon him and Caveator.

"Burden of proof" can relate to either of two separate and distinct evidentiary concepts. Mobley v. Lyon, supra at 128(1), 67 S.E. 668. It is sometimes used

"as indicating the burden of establishing the case as a whole, and sometimes as indicating the burden of the evidence during the progress of the trial, or that certain evidence will make out a prima facie case or will serve prima facie to establish a given fact, if not rebutted...."

McKemie v. McKemie, 76 Ga.App. 212, 214, 45 S.E.2d 456 (1947). The former refers to the non-shifting burden of persuasion established by the pleadings, whereas the latter refers to the shifting burden of producing some evidence from which the trier of fact can infer the fact alleged. OCGA §§ 24-4-1, 24-4-2; Hawkins v. Davie, 136 Ga. 550, 552(1), 71 S.E. 873 (1911).

Because he offered the will for probate, Propounder assumed the non-shifting burden of persuasion as to the validity of that document, including the requirement of showing by a preponderance of the evidence that the signature was that of Decedent. OCGA § 53-5-21(a). "If in a trial the question is whether a certain person signed a certain instrument or not, the party who asserts that it was so signed and to whose case this is essential carries the burden of proving it." Mobley v. Lyon, supra at 130(1), 67 S.E. 668. Since the validity of the testator's signature was a necessary element of Propounder's case, the burden of persuasion in that regard remained on him and did not shift to Caveator to prove affirmatively that the signature was a forgery. Compare Jones v. Cannady, 78 Ga.App. 453, 461(4), 51 S.E.2d 551 (1949) (caveator has burden of persuasion as to affirmative defense). Caveator was required only to come forward with evidence to rebut Propounder's prima facie case that the signature was genuine. Mobley v. Lyon, supra at 129(1), 67 S.E. 668.

Thus, the probate court imposed the correct evidentiary burdens upon the parties in this case. The relevant appellate inquiry is whether the probate court was authorized to conclude that Caveator met his burden of coming forward with rebuttal evidence to counter Propounder's prima facie showing of the genuineness of the testator's signature. In that regard, this Court considers only the sufficiency of the evidence. See Smith v. Srinivasa, 269 Ga. 736, 737(2), 506 S.E.2d 111 (1998); Williams v. Swint, 239 Ga. 66(1), 235 S.E.2d 489 (1977). A review of the record shows testimony from both lay and expert witnesses to the effect that the signature on the instrument was a forgery. See Willis v. Bozeman, 224 Ga. 729, 730(1), 164 S.E.2d 841 (1968). The probate court was authorized to believe this testimony and, based thereon, to find that the proffered will was a forgery. See generally Baumbach v. Dickens, 213 Ga. 745(2), 101 S.E.2d 702 (1958). Thus, as against a general grounds objection, the evidence was sufficient to support the probate court's judgment.

2. However, Propounder also enumerates error in some of the probate court's evidentiary rulings. Propounder called certain of the beneficiaries under the proffered will, who testified to statements made to them by Decedent concerning the disposition of his property. The probate court refused to consider this evidence, however, on the ground that it was inadmissible hearsay.

"Hearsay evidence is admitted only in specified cases from necessity." OCGA § 24-3-1(b). The Code sets forth a number of those instances in which hearsay evidence is admissible. OCGA § 24-3-2 et seq. The testimony excluded here does not come within any of those specifically enumerated exceptions, but that list is not exhaustive and exclusive of all other cases wherein hearsay is admissible. Rea v. Pursley, 170 Ga. 788, 793(1), 154 S.E. 325 (1930). Therefore, we need to decide whether the statements attributed to the Decedent fall within an additional hearsay exception which is not specifically set forth in the Code.

"Greater latitude is given to the admission of parol evidence on the issue of probate than on the construction of the will after probate. [Cit.]" Ellis v. O'Neal, 175 Ga. 652, 661(4), 165 S.E. 751 (1932). Thus, this Court has held that, in probate proceedings, the testator's declarations "are admissible in all cases where the genuineness of the instrument has been assailed by other proper evidence either to strengthen or weaken the assault." Rea v. Pursley, supra at 797(1)...

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  • State v. Hodges
    • United States
    • Supreme Court of Georgia
    • June 18, 2012
    ...and state of mind, not their truth. Otherwise, OCGA § 24–3–2 would not be an “exception” to the hearsay rule. Heard v. Lovett, 273 Ga. 111, 112, 538 S.E.2d 434 (2000). This principle is even clearer under the classic definition of hearsay codified in Federal Rule of Evidence 801(c) and adop......
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    • August 23, 2022
    ...party against whom the presumption operates, must come forward with evidence to rebut the presumption of solvency. See Heard v. Lovett, 273 Ga. 111, 538 S.E.2d 434 (2000) ; Cent. of Georgia Ry. Co. v. Hester, 94 Ga. App. 226, 226, 94 S.E.2d 124 (1956). To overcome the presumption that all c......
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    • United States
    • United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Northern District of Georgia
    • August 23, 2022
    ...party against whom the presumption operates, must come forward with evidence to rebut the presumption of solvency. See Heard v. Lovett, 273 Ga. 111 (2000); Cent. of Georgia Ry. Co. v. Hester, 94 Ga.App. 226, 226 (1956). To overcome the presumption that all co-obligors are solvent, the oppon......
  • Good Gateway, LLC v. NRCT, LLC (In re Bay Circle Props.)
    • United States
    • United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Northern District of Georgia
    • August 23, 2022
    ...party against whom the presumption operates, must come forward with evidence to rebut the presumption of solvency. See Heard v. Lovett, 273 Ga. 111 (2000); Cent. of Georgia Ry. Co. v. Hester, 94 Ga.App. 226, 226 (1956). To overcome the presumption that all co-obligors are solvent, the oppon......
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3 books & journal articles
  • Evidence - Marc T. Treadwell
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 53-1, September 2001
    • Invalid date
    ...214, 539 S.E.2d at 570. 127. . Id. at 214-15, 539 S.E.2d at 570-71. 128. . Id. 129. . Id. at 215, 539 S.E.2d at 571. 130. . 273 Ga. Ill, 538 S.E.2d 434 (2000). 131. . Id. at 112, 538 S.E.2d at 436. 132. . Id. 133. . O.C.G.A. section 24-3-l(b) (1995) provides that "[hjearsay evidence is admi......
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    • United States
    • Mercer University School of Law Mercer Law Reviews No. 53-1, September 2001
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    ...will for probate is sometimes referred to as the "propounder," and those who file objections are called "caveators." Id. 5. 273 Ga. Ill, 538 S.E.2d 434 (2000). 6. Id. at 111, 538 S.E.2d at 435. 7. Id. The standard of proof is a showing by a preponderance of the evidence. Id. 8. Id. (e.g., M......
  • Making a Prima Facie Case for Solemn Form Probate After Singelman v. Singelman
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    • State Bar of Georgia Georgia Bar Journal No. 8-4, February 2003
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