Hill v. Cochran, 45702

• Decision Date: 14 July 1988
• Docket Number: No. 45702,45702
• Citation: 258 Ga. 473,371 S.E.2d 94
• Parties: HILL v. COCHRAN et al.
• Court: Georgia Supreme Court

Page 94

371 S.E.2d 94

258 Ga. 473

HILL v. COCHRAN et al.

No. 45702.

Supreme Court of Georgia.

July 14, 1988.

Reconsideration Denied Sept. 7, 1988.

E. Freeman Leverett, Heard, Leverett & Phelps, Elberton, for Kathleen T. hill.

Robert L. Donovan, Marietta, Andrew J. Hill, Jr., Lavonia, for Jean H. Cochran et al.

MARSHALL, Chief Justice.

Mr. Hill's 1974 will named his wife as sole beneficiary. In 1975, he executed another will, which recited: "I make this will in contemplation of a divorce from my wife ...; and therefore, exclude her from receiving any of my estate whatsoever, we now living in a bona fide state of separation." The will then devised and bequeathed all of the testator's property to his two daughters. Shortly thereafter, the testator dismissed a pending divorce action against his wife, and the parties resumed cohabitation and were living together at the time of his death in 1986. The beneficiaries of both wills filed the wills for probate in solemn form. The probate court granted the widow's petition. On de novo appeal, superior court granted the daughters' petition based on a jury verdict. The widow appeals. We affirm.

1. Mrs. Hill contends that the 1975 will was, as a matter of law, an unambiguous contingent or conditional will, which never became effective because of the failure of the contingency or condition (the divorce).

The appellant's very proposition that the will was contingent created an ambiguity and a factual issue to be resolved by the jury. Redfearn, Wills, Georgia, § 136, p. 306 (4th ed.). This issue was submitted to the jury pursuant to OCGA § 9-11-49, and resolved against Mrs. Hill's contention. "A testator may by his will provide that its validity is to be determined by the happening of some particular event, but the words must clearly show that it was intended to be contingent or it will not be upheld as a contingent will." (Emphasis supplied.) Redfearn, Wills, Ga., § 148, p. 357 (4th ed.). The words employed in the 1975 will were not those of contingency, but of clear intent to thereby revoke the previous will.

Mrs. Hill urges that parol evidence of the parties' reconciliation and re-cohabitation subsequent to the execution of the 1975 will, shows the testator's intent that the will be contingent or conditional. However, under OCGA § 53-2-94, parol evidence is admissible as to the testator's intent at the time of execution, not subsequently.

Mrs. Hill contends that the evidence did not overcome the presumption of law of revocation arising by the fact that the will could not be found after the death of the testator. OCGA § 53-3-6. The question of whether the propounders carried the burden of overcoming the presumption that the original will was revoked, was for the jury, and in reviewing the jury verdict, the evidence must be accepted which is most favorable to the party in whose favor the verdict was rendered. Williams v. Swint, 239 Ga. 66 (1), 235 S.E.2d 489 (1977) and cits. Mrs. Hill's sole evidence of the revocation of the 1975 will was her own unsupported testimony. On the other hand, there was evidence that the testator had confirmed to others that his will left his estate to his daughters; that he had not destroyed the original will because he was unable to obtain it; that the original will was missing from the footlocker where the testator kept his important papers, several days after his death; that his directing his wife to destroy only a copy of it was an attempt to avoid a marital conflict which could be presumed under the circumstances; and that, as he had used the services of attorneys on several occasions, there was nothing to have prohibited him from reformulating a subsequent will at some point after the "reconciliation" had he so desired. There was evidence to support the verdict for the propounders-daughters.

2. Mrs. Hill next contends that the trial court erred in permitting the appellees to amend the pre-trial order after the jury had been selected so as to add the name of witness Louie Moon, and in refusing to grant a new trial when it was allegedly discovered after the verdict that this conduct by counsel was calculated to obtain an unfair advantage. She argues that, not only did his testimony (which was not purely rebuttal or cumulative of other...