Knox v. Knox, 19886

• Decision Date: 12 November 1957
• Docket Number: No. 19886,19886
• Citation: 101 S.E.2d 89,213 Ga. 677
• Parties: John S. KNOX v. Blodgett Britton KNOX et al.
• Court: Georgia Supreme Court

Page 89

101 S.E.2d 89

213 Ga. 677

John S. KNOX v. Blodgett Britton KNOX et al.

No. 19886.

Supreme Court of Georgia.

Nov. 12, 1957.

Welborn B. Cody, Thomas C. Shelton, Jack Paul Etheridge, Smith, Kilpatrick, Cody, Rogers & McClatchey, Atlanta, for plaintiff in error.

Wm. G. Grant, Robt. W. Spears, Atlanta, for defendants in error.

Syllabus Opinion by the Court.

HAWKINS, Justice.

Mrs. Lena B. Knox, at age 81, executed a will on June 29, 1951, leaving all of her estate to six of her nine children in equal parts. Her entire estate consisted of a sixty-percent individual interest in ten apartment houses and two small lots adjacent thereto, all located in Atlanta, Fulton County, Georgia. The children named as beneficiaries in the will were Mrs. T. m. (Lena) Cassels, Mrs. Suzanne Knox Sheppard (Shepherd), Mrs. C. W. (Evelyn) Powell, Fitzhugh Knox, (Jr.), Olmstead Knox, and John (S.) Knox. The other three children named in the will but not made beneficiaries were the caveators, namely, Blodgett Britton Knox, Mrs. T. L. (Jennie Knox) Barber, and Inman H. Knox. Inman H. Knox died during the litigation, and by order of court Blodgett Britton Knox, as executor of his estate, was named as caveator in his stead.

Mrs. Lena B. Knox died January 26, 1956. John Knox and Mrs. Suzanne Knox Shepherd were named in the will as executor and executrix. Mrs. Shepherd renounced her appointment as such, and John S. Knox proceeded as propounder to probate the will in solemn form in the Court of Ordinary of Fulton County, Georgia. The caveat set forth five different grounds, namely, (1) lack of testamentary capacity (2) undue influence, (3) fraud, (4) misrepresentations, and (5) mistake of fact. The caveat was tried before the ordinary, who rendered a decision ordering the will probated in solemn form, and appointed John S. Knox as executor, who thereupon qualified as such. The caveators, filed an appeal to the superior court, which appeal was tried before a jury, and the jury returned a verdict in favor of the caveators. At the close of the evidence in the superior court trial, plaintiff in error moved for a directed verdict in his behalf on each and every ground of the caveat, which motion was denied.

In due course plaintiff in error filed a written motion for judgment in his behalf notwithstanding the previous verdict of the jury and judgment of the court, which motion alleged the previous oral motion for a directed verdict made at the close of the evidence in said case, which the court declined to grant. In said written motion for judgment plaintiff in error, in the alternative, moved for a new trial on the general ground. Thereafter, an amendment to the motion for new trial was filed, adding to the general grounds thereof eight special grounds, one of which, ground numbered 10, has been abandoned.

The motion for new trial as amended and the motion for judgment notwithstanding the verdict were denied, and error is assigned on the denial of both motions. Held:

1. It is conceded by counsel for plaintiff in error that if there was sufficient evidence to sustain any one of the five grounds of the caveat, then the propounder was not entitled to a directed verdict and hence the motion for judgment notwithstanding verdict would have properly been denied, and they ask the court, in passing on this point, to consider special grounds of the amended motion for a new trial Nos. 3, 4, 5, 6, and 7, and their discussion thereof. It is contended in these five grounds that the trial court erred in submitting to the jury the issues of testamentary capacity, undue influence, fraud, misrepresentations, and mistake of fact, because there was no evidence to support any ground of the caveat. In Adler, v. Adler, 207 Ga. 394; 405(7), 61 S.E.2d 824, 832, this court said: 'But this court does not pass upon the credibility of witnesses, nor the weight to be given evidence on disputed facts. These are questions for the jury. Whether their verdict is contrary to the evidence, or contrary to its weight, or decidedly and strongly against its weight, is a question the law vests in the trial judge's discretion. He may grant a new trial on these grounds, but this court has no such power. Where the trial judge approves the verdict, the sole question for determination by this court is whether there is any evidence sufficient to authorize it.' The evidence adduced on the trial of this case appears on pages 95 through 759 of the record, and has been carefully reviewed by this court, as requested by counsel for both plaintiff in error and defendants in error. There is some evidence to support each ground of the caveat. It was therefore not error for the trial judge to submit to the jury each issue raised by the caveat, and to overrule special grounds 3 through 7 of the motion for a new trial, and to deny the motion for judgment notwithstanding the verdict. Neither can this court hold that it was error to overrule the general grounds of the motion for new trial.

2. Special ground 8 of the motion for new trial assigns error on the following excerpt from the charge of the court: 'The testimony has taken a very wide range as to time. Evidence as to facts and circumstances about other times, both before and after, may be considered by you for what light, if any,...