Johnson v. Sullivan, 37052

• Decision Date: 26 May 1981
• Docket Number: No. 37052,37052
• Citation: 247 Ga. 663,278 S.E.2d 640
• Parties: JOHNSON et al. v. SULLIVAN et al.
• Court: Georgia Supreme Court

Page 640

278 S.E.2d 640

247 Ga. 663

JOHNSON et al. v. SULLIVAN et al.

No. 37052.

Supreme Court of Georgia.

May 26, 1981.

Rehearing Denied June 16, 1981.

Adele P. Grubbs, J. Milton Grubbs, Jr., Marietta, for Doris Ruth Johnson et al.

Roy Barnes, Marietta, for Charlie Howard Sullivan et al.

SMITH, Justice.

Appellants are the three children of the decedent, Clarence Sullivan. They filed a caveat to the will propounded by appellees, the decedent's two brothers. The probate court rejected the caveat. In an appeal to the superior court, the jury found in favor of appellees. We affirm.

Following the death of his wife, the decedent became severely depressed. He twice attempted suicide. In 1971 he was committed to the Central State Hospital by order of the Probate Court of Cobb County. He was diagnosed as suffering from a psychotic depressive reaction. A few days after committal, however, his condition improved and he was placed on convalescent leave. See Former Code Ann. § 88-506.8. After a short stay with one of his brothers, the decedent returned home and resumed employment. No further suicide attempts were made until May 1974, when he took his life.

The decedent executed his will in January 1974. By its terms appellants were to receive 15% of the estate, appellees and a sister-in-law were to receive 55%, and the remaining 30% was to be divided among two grandchildren and a nephew.

1. Appellants contend that the trial court erred in charging the jury that "Georgia law presumes the sanity of a citizen" because such a charge is "not ... applicable to a will case." The same challenge was made and rejected in Franklin v. First National Bank, 187 Ga. 268, 200 S.E. 679 (1938). The language of our opinion in that case is apropos: "Elsewhere in the charge the jury was instructed that the burden was on the propounder to establish the factum of the will, that it was freely and voluntarily made, and that the testatrix apparently had sufficient mental capacity to make a will, as a prerequisite to the making out by the propounder of a prima facie case. We see no less reason to presume sane action in the execution of a will than in other instances of human relations and conduct ... The policy of the law is to enforce the terms of a will, not to thwart the testator's intention or to make difficult the expression by him of that intention... The law, in an abundance of caution, provides that the propounder, upon offering the will for probate, shall produce to the court the witnesses to its execution, to prove the factum of the will, that it was freely and voluntarily made, and also apparent testamentary capacity. This provision of the law is in no wise repugnant to a presumption in favor of testamentary capacity. The law, in its zealousness always to safeguard the rights of a deceased testator, although presuming testamentary capacity, deems it wise not to rely solely upon that presumption, but to make inquiry into the immediate circumstances of the execution of the will from those who were present at the time. While the presumption in favor of testamentary capacity exists, the presumption alone is not sufficient to make out for the propounder a prima facie case. As the learned judge charged the jury, the burden is on the propounder to show the factum of the will, free and voluntary action, and apparent testamentary capacity. When this is shown, together with the presumption of testamentary capacity which exists in the absence of proof, a prima facie case for the propounder is made out. Were it not true that a presumption existed in favor of testamentary capacity, it is doubtful that the legislature of the State would have permitted a prima facie case to be made out upon such cursory and perfunctory proof." Id. at 272-273, 200 S.E. 679. The trial court did not err in charging the jury on the presumption of sanity. See also Grover v. National City Bank of Rome, 179 Ga. 279, 286, 175 S.E. 555 (1934).

Appellants also assert that the trial court "erred in failing to give Caveators' Request to Charge No. 35 that, once insanity is shown it is legally presumed to continue, but may be rebutted." In a related argument, they contend that the trial court "erred in failing (to charge) that once adjudicated insane, if there is no discharge on the record of Probate Court, the person remains legally insane."

We find no error. Although the decedent was hospitalized pursuant to a finding under Former Code Ann. § 88-507.1 that he was mentally ill, it is uncontroverted that he received an administrative release shortly thereafter due to the improvement in his condition. Even assuming appellants are correct in their contention that the decedent's hospitalization gave rise to a presumption of insanity (see Grace v. State, 231 Ga. 113, 200 S.E.2d 248 (1973)), any such presumption clearly had ended by the time the decedent executed his will. The decedent's "administrative release under the 1969 law (Hospitalization of the Mentally Ill Act (Code Ann. Ch. 88-5)) cancelled the continuing presumption under Code § 38118 ..." Gilbert v. State, 235 Ga. 501, 502, 220 S.E.2d 262 (1975).

2. Four medical doctors who examined the testator in 1971 testified in appellants' behalf. Appellees requested that the trial court instruct the jury that the doctors' testimony be considered for the limited purpose of showing the testator's mental capacity at the time of the execution of the will. See Ware v. Hill, 209 Ga. 214, 71 S.E.2d 630 (1952). The trial court gave the requested instruction, but omitted the name of one of the doctors. Appellants claim the instruction was harmful in three respects and necessitates reversal.

First, appellants argue that the testimony of Dr. Word, to the effect that two sons-in-law may have picked up the testator at the hospital at the time of his release, was relevant to other issues, i. e., undue influence and the relative "exclusion" of appellant daughters from the estate. In our view, this testimony was at best only marginally relevant to these...