Tony v. Pollard
| Decision Date | 08 September 1981 |
| Docket Number | No. 37625,37625 |
| Citation | 248 Ga. 86,281 S.E.2d 557 |
| Parties | TONY et al. v. POLLARD, Extrx. |
| Court | Georgia Supreme Court |
Robert E. Rivers, Jr., Tisinger, Tisinger, Vance & Greer, Carrollton, for Malene Pollard, Extrx.
Jack F. Witcher, Murphy, Witcher & Murphy, Bremen, for Mary Catherine Anderson Tony et al.
This case involves the validity of a will. Testatrix was survived by two brothers and five sisters. Contestants (caveators) are the children of a brother of testatrix who predeceased her. Contestants challenge the validity of the will primarily on the basis of undue influence.
Contestants were not included in what appears to have been testatrix's 1978 will. Nor were they included in her 1979 will offered for probate and in issue here. 1 Regarding the contested 1979 will, the evidence before the probate court was undisputed that on May 7, 1979, testatrix met with her attorney, alone, to discuss what she wanted to do with her property; that on that same day she visited her doctor complaining of sporadic dizziness; that her blood pressure was normal and she was oriented, coherent, described her symptoms, and evidenced no abnormal mental condition; that at age 66 she executed the will on May 25, 1979, at her attorney's office after discussing it with him privately before his secretary came in to witness the will along with the attorney; that the witnesses to the will testified that testatrix had the mental capacity to execute the will and that she did so voluntarily; that testatrix lived alone, maintained herself and her home and handled her own finances; that on July 2, 1979, testatrix returned to her doctor complaining of headache, dizziness and blankness of mind; that she had difficulty expressing herself and said this condition had been going on about two weeks; that she was admitted to the hospital that same day; that she was operated on and it was found that she had a malignant brain tumor; and that testatrix died on December 11, 1979. Contestants called no witnesses. The probate court admitted the will to probate and contestants appealed to the superior court.
Propounder moved for summary judgment in the superior court. One contestant filed an affidavit in opposition to the motion in which she stated that testatrix had told her on numerous occasions after the death of testatrix's brother (affiant's father) in 1964 that testatrix would include affiant and her brother and sister in testatrix's will; that one of testatrix's sisters (Malene Pollard, executrix, propounder and one of the beneficiaries under the will) was constantly around testatrix prior to her death and suggested to testatrix how her estate should be distributed, omitting contestants; that this sister influenced testatrix and arranged for the preparation and execution of the will omitting contestants; that at the time of executing her will testatrix was having dizzy spells, on medication, unable to complete sentences without forgetting where she was or what she was doing; that testatrix's physical condition was such that she was depressed and susceptible to suggestions; and that said sister suggested to testatrix that contestants did not love her and should be excluded from her will.
After hearing on the motion for summary judgment, the trial court called for briefs and thereafter entered the following order: "The motion for summary judgment filed by (propounder) having come on for a hearing ... and the Court having given counsel for the parties time to submit briefs with regard to said Motion; and it appearing to the court that counsel for the (propounder) has submitted a brief and counsel for (contestants) has not submitted a brief; it is CONSIDERED, ORDERED AND ADJUDGED that there is no genuine issue as to any material fact and that (propounder) is entitled to judgment as a matter of law, said Motion for Summary Judgment is hereby granted." Contestants appeal.
1. Contestants enumerate as error that the trial court's order was based not on an examination of the evidence submitted on the motion but on their failure to file a brief. While we agree that the grant of summary judgment should be based on the evidence submitted on the motion rather than respondent's failure to take advantage of the opportunity to file a brief (no order requiring the filing of briefs and giving notice that failure to file would result in dismissal appears in the record, and the appeal was not dismissed for want of prosecution) inasmuch as the court also found that there was no genuine issue as to any material fact, the order is at least ambiguous as to its basis.
As was stated by Justice Bleckley in Lee v. Porter, 63 Ga. 345, 346 (1879): From this keen observation of the common sense functioning of the judicial mind, the rule has arisen that "A correct decision of a trial court will not be reversed, regardless of the reasons given therefor." Coker v. Atlanta, 186 Ga. 473(1), 198 S.E. 74 (1938). We find no error in the recital preceding the substance of the order.
2. Contestants enumerate as error the trial judge's failure to consider contestants' affidavit. The portions of that affidavit which could be said to raise genuine issues of fact 2 are as follows: that one of testatrix's sisters (Malene Pollard, executrix, propounder and one of the beneficiaries under the will) was constantly around testatrix prior to her death and suggested to testatrix how her estate should be distributed, omitting contestants; that this sister influenced testatrix and arranged for the preparation and execution of the will omitting contestants; that testatrix's physical condition was such that she was depressed and susceptible to suggestions; and that said sister suggested to testatrix that contestants did not love her and should be excluded from her will.
Code § 81A-156(e) sets forth three requirements for affidavits supporting and opposing motions for summary judgment, as follows: "(They) shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Although contestants' affidavit states that it was made on personal knowledge, the affidavit sets forth conclusions without laying the necessary foundation therefor, not facts as would be admissible in evidence, and it nowhere shows that affiant is competent to testify to the conclusory statements that the sister "suggested" to testatrix that contestants be excluded from the will and "influenced" testatrix to omit contestants from the will. We are left in doubt as to when, in relation to the execution of the will, such "suggestions" were made and such "influence" was exerted. We are left in doubt as to whether affiant personally overheard such suggestions being made and influence being exerted (which seems most unlikely), or whether affiant heard of these matters from someone else (hearsay, and therefore inadmissible as testimony from affiant), or whether affiant "knew" that it happened because of certainty that her aunt would not have excluded contestants unless she had been influenced to do so. "The mere opinions of witnesses, other than physicians and the attesting witness, are not admissible, unless accompanied with the facts on which they are founded; but having stated the appearance, conduct, conversation, or other particular facts, from...
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