Smoot v. Alexander
| Decision Date | 11 September 1941 |
| Docket Number | 13839. |
| Citation | 16 S.E.2d 544,192 Ga. 684 |
| Parties | SMOOT v. ALEXANDER et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The ruling of this court upon a former appearance of this case (188 Ga. 203, 3 S.E.2d 593), that a charge to the jury upon the contention of the caveators that the will was not properly executed as required by law was proper, was in effect a ruling that there was evidence to authorize a verdict against the will on this issue. Since the evidence introduced on this subject on the subsequent trial now under review is substantially the same as that under consideration on the former appearance the former ruling of this court is the law of the case and damands a decision that the evidence authorized the verdict against the will on this issue.
Beck Goodrich & Beck, of Griffin, and Jas. R. Davis, of Thomaston, for plaintiff in error.
W. M. Dallas and John H. McGehee, Jr., both of Thomaston, for defendants in error.
This is the second appearance of this case in this court. Smoot v. Alexander, 188 Ga. 203, 3 S.E.2d 593, 594. On the first appearance the propounder of the will excepted to a judgment overruling his motion for a new trial based upon general and special grounds. This court sustained a special ground of the motion based upon the illegal admission of certain testimony and reversed the judgment, but sustained the judge on the other special grounds of the motion. Upon the retrial of the case the jury again returned a verdict in favor of the caveat. The case is now in this court upon exceptions to the overruling of the propounder's motion for a new trial based upon the general grounds only.
In the second special ground of the motion for a new trial under consideration on the former appearance of the case complaint was made that the court erred in submitting to the jury the question whether the paper was properly executed as required by law, the movant contending 'that there was no evidence upon which the jury could predicate a verdict that the paper was not executed as required by law,' and therefore that the caveators were given the benefit of a theory to which they were not entitled under the evidence. After stating the principle of law that the propounder of the alleged will has the burden, in the first instance, of making out a prima facie case, by showing the factum of the will and that at the time of its execution the testator appearently had sufficient mental capacity to make it, and in making it, acted freely and voluntarily, this court said: 'Considering this principle in connection with the pleadings and evidence the judge did not err' in giving the charge complained of....
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