Helton v. Zellmer, 32153
| Decision Date | 27 April 1977 |
| Docket Number | No. 32153,32153 |
| Citation | 238 Ga. 735,235 S.E.2d 35 |
| Parties | James B. HELTON, Jr. v. Gloria Helton ZELLMER. |
| Court | Georgia Supreme Court |
Robert H. Herndon, Milledgeville, for appellant.
Milton F. Gardner, Milledgeville, for appellee.
Appellant filed a caveat to the probate of the purported last will and testament of Mrs. Mamie V. Helton in the Probate Court of Baldwin County. That court ruled against the caveat, and its judgment, probating the will in solemn form, was appealed by the caveator to the superior court. The caveator sought to attack the will on grounds of lack of testamentary capacity, fraud, and undue influence. The trial court sustained the propounder's motions for directed verdict on the undue influence and fraud grounds. The sole issue of whether the will was void for lack of testamentary capacity on the part of the testatrix was submitted to a jury. The jury found against the will. The trial court granted the propounder's separate motions for judgment notwithstanding the verdict and for a new trial on the general grounds. The caveator appeals from both orders of the trial court.
At the de novo trial in superior court, the propounder called the subscribing witnesses to the will, the scrivener, and various other lay and medical witnesses who testified that in their opinion the testatrix was of sound mind and disposition. The testimony of the subscribing witnesses was itself sufficient to make out a prima facie case of the testamentary capacity of the testatrix to make a valid will. SeeThornton v. Hulme, 218 Ga. 480, 128 S.E.2d 744 (1964); Anderson v. Anderson, 210 Ga. 464, 80 S.E.2d 807 (1954).
The caveator called various lay and medical witnesses, including the testatrix' general physician of 25 years, who had psychiatric training in his professional background. The testimony of these witnesses was sufficient to authorize the jury to conclude, as it did, that the testatrix lacked sufficient mental capacity to make this will.
We believe there was a genuine conflict in the evidence on the sole issue of testamentary capacity which made a legitimate issue of fact for the jury. See Cook v. Sheats, 222 Ga. 70, 148 S.E.2d 382 (1966); Ware v. Hill, 209 Ga. 214, 71 S.E.2d 630 (1952). Therefore, the trial court's judgment notwithstanding the verdict must be reversed as there was sufficient evidence to support the jury's verdict.
However, the trial court's grant of the propounder's separate motion for a new trial must be affirmed. Code Ann. § 81A-150(b) allows a motion for...
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