Smoot v. Alexander
| Decision Date | 14 June 1939 |
| Docket Number | 12664. |
| Citation | 3 S.E.2d 593,188 Ga. 203 |
| Parties | SMOOT v. ALEXANDER et al. |
| Court | Georgia Supreme Court |
James R. Davis, of Thomaston, and Beck, Goodrich & Beck, of Griffin, for plaintiff in error.
W M. Dallas, J. H. McGehee, Jr., and John E. Holliman, all of Thomaston, for defendants in error.
Syllabus Opinion by the Court.
1. The exception is to a judgment refusing a motion for a new trial complaining of the verdict sustaining a caveat to an alleged will offered for probate in solemn form.
2. What is mental capacity to make a will is a question of law. On the trial of an issue of devisavit vel non, whether the alleged testatrix had mental capacity to make a will at the time of signing the paper, is a question for decision by the jury, and a witness can not testify as to such legal conclusion. Travelers' Insurance Co. v Thornton, 119 Ga. 455, 46 S.E. 678; Slaughter v Heath, 127 Ga. 747(6), 57 S.E. 69, 27 L.R.A.,N.S., 1; May v. Bradlee, 127 Mass. 414, 420; Nashville, C & L. R. Co. v. Brundige, 114 Tenn. 31, 84 S.W. 805, 4 Ann.Cas. 887. See also Brown v. Mitchell, 88 Tex. 350, 31 S.W. 621, 36 L.R.A. 64.
(a) This exact question was not raised by the objections to the testimony, and decided, in the cases of Scott v. McKee, 105 Ga. 256, 31 S.E. 183; Pennington v. Perry, 156 Ga. 103, 118 S.E. 710; Dean v. Littleton, 161 Ga. 651, 131 S.E. 507; Merritt v. Wallace, 173 Ga. 435, 160 S.E. 610.
(b) It was erroneous, as complained in the first special ground of the motion for a new trial, to permit a witness of the caveator, over objection, to testify in substance that the alleged testatrix had not sufficient capacity to make a will, the objection being 'that the witness could not testify as to whether or not the testatrix had sufficient mental capacity to make a will, because that was a mixed question of law and fact that the jury were to try.'
3. On the trial of such an issue as indicated above, this court has held that "The burden in the first instance is upon the propounder of the alleged will to make out a prima facie case, by showing the factum of the will and that at the time of its execution the testator apparently had sufficient mental capacity to make it, and in making it acted freely and voluntarily. When this is done, the burden of proof shifts to the caveators.' Credille v Credille, 123 Ga. 673, 51 S.E. 628, 107 Am.St.Rep. 157; Potts v. House, 6 Ga. 324(1), 50 Am.Dec. 239 [329]; Stancil v. Kenan, 35 Ga. 102; Evans v. Arnold, 52 Ga. 169; Thompson v. Davitte, 59 Ga. 472, 475.' Slaughter v. Heath, 127 Ga. 747, 760, 57 S.E. 69, 75, 27 L.R.A.,N.S., 1. Considering this principle in connection with the pleadings and evidence the judge did not err as complained of in the second special ground of the motion for a new trial, in submitting to the...
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