Lyons v. Bloodworth

• Decision Date: 06 March 1945
• Docket Number: 15094.
• Citation: 33 S.E.2d 314,199 Ga. 44
• Parties: LYONS v. BLOODWORTH et al.
• Court: Georgia Supreme Court

33 S.E.2d 314

199 Ga. 44

LYONS v. BLOODWORTH et al.

No. 15094.

Supreme Court of Georgia

March 6, 1945

Syllabus by the Court.

1. Where a will cannot be found after the death of the testator there is a strong presumption that it was destroyed or revoked by the testator, and this presumption stands in the place of positive proof; and one who seeks to establish a lost or destroyed will assumes the burden of overcoming this presumption by adequate proof.

(a) The foregoing presumption may be rebutted by proof that the will was lost or destroyed after the death of the testator, or before his death without his consent, or that the testator did not have possession of the will after its execution, or that he had lost his testamentary capacity before his death and that the will was in existence at the time the mental alienation occurred, and the like.

2. There was no evidence in the instant case to rebut the presumption above stated.

This was a trial in the superior court on appeal from the court of ordinary. Dewey Lyons filed a petition to establish and probate the will of his mother, Mrs. Sallie F. Lyons. He alleged the execution of her will and that after its execution and while the will was still in effect the testatrix became mentally incompetent to revoke the same, but that after the loss of her mental capacity the will had been lost or destroyed, either before or after her death. Other heirs filed a caveat. The jury found in favor of the caveators, and to the denial of his motion for new trial the propounder excepted.

Upon the trial, it appeared that the will was executed in February, 1940, and that the testatrix died in November 1943. Under the terms of the will, as established, Dewey Lyons was the principal legatee. From the testimony of both the propounder and the caveators, it seems that at some time before her death the mind of the testatrix became to some extent affected. About eight months or a year before her death the testatrix moved to Augusta, Georgia, resided with her daughter and died there.

It was the contention of Dewey Lyons, the propounder, that, after the execution of the will, and before the loss of the mental capacity of the testatrix, he saw the will, acquainted himself with its contents, and had a conversation with the testatrix in reference thereto. As to this, he testified: 'I know when she came to Gibson to make her will * * *. Her health was not so good. * * * She had her mental faculties all right. She had a spell of sickness about two years after she made the will. That illness was pretty severe. She had a stroke. * * * It pulled her face a little sideways. That affected her mental faculties a little bit. She got worse. She got pretty bad. * * * She was able to know what she was doing part of the time. That took place about two and a half years before her death. * * * She left in the fall of 1942. * * * When she left, her health got bad and her mind was right bad.' As to establishing the existence of the will after its execution, the propounder testified: 'The will that my mother made when she came to the courthouse she read to me about a month afterwards. * * * She said, 'I went down to Gibson. * * * I had a paper wrote. * * * I will read it to you,' and pulled it out and read it. 'If a fire gets in this house, carry the box out. * * * Save this paper.'' The propounder further testified: 'I did not find that will after her death. I saw the will about two months before she went to Augusta. Her mind was bad then. She went in that box and told me to take it back to Sparta, and I said, 'That will?' She said, 'Yes.' I said, 'It has been in the box, just put it back in there.' I have never been able to find the will. * * * The best I remember, she died about eight or nine months after asking me to take this box. My mother died in November, 1943. * * * She was in Augusta about eight or nine months before she died.'

Other evidence produced by the propounder relating to the mental condition of the testatrix was:

Alvin Raley: 'For the last year or so her mental condition was bad. I should not think she had mental capacity to make contracts. * * * Her mind was bad for one year before her death. * * * I lived there in 1941. Her mind was bad then. It looked like it stayed about the same. I would say part of the time it looked to me like she didn't have mind enough to know what she was doing, and then again I reckon it seemed she would.'

John Gibson testified: 'In the last year or two of her life Mrs. Lyons was not the same woman. I couldn't say to what extent she lost her capacity to do and know things--the last part of her life she did not hardly know anything. From my observation of her in the latter years of her life, she was not able to make a contract or deed that I know of, or anything like that. * * * Mrs. Lyons' mind was bad a couple of years before her death. * * * Her mind was bad in 1942 and 1943. * * * I notice, when you carried her money sometimes, she talked funny about money.'

Witnesses produced by the caveators gave the following testimony:

Julian Amonson: 'I never heard that her mind was bad until after she went to Augusta. * * * I saw her at least once or twice a month for the last three or four years. * * * When she left here to go to Augusta her mind was all right, and after then I heard it was not. * * * The last time I stopped by she was in fairly good health, seemed like her mind was; she was feeble. It was in 1943 the last time I stopped. Her mind was bad when she left here. * * * I would say she lost her mind about 1942 or 1943, something like that, after she went to Augusta, * * * sometime about the last of 1942. Her mind seemed to be good then.'

W. C Braswell: 'I never heard of Mrs. Lyons' mind being bad prior to the time she went to Augusta, * * * the last...