Williams v. Swint, 32137
| Decision Date | 27 April 1977 |
| Docket Number | No. 32137,32137 |
| Citation | 239 Ga. 66,235 S.E.2d 489 |
| Parties | Bertha R. WILLIAMS v. Lottie SWINT et al. |
| Court | Georgia Supreme Court |
Houston White, Sr., Red Oak, Strother & Weiner, Beryl H. Weiner, John C. Yancey, Atlanta, for appellant.
Heyman & Sizemore, Gerald M. Edenfield, George H. Myshrall, Jr., Atlanta, for appellees.
This is an appeal by the propounder of a will from a judgment notwithstanding the verdict which held that the testatrix had revoked her will by physical act of revocation before her death.
Direct evidence submitted by both sides was contradictory. The appellant-propounder offered testimony of a witness which supported the allegation that the will had been destroyed after the testatrix' death; the appellee offered testimony of an eyewitness to the revocation by the testatrix.
1. Both parties admit that Ga. Code Ann. § 113-611 essentially provides that when a will has been lost or destroyed, whether before or after the death of the testator, there is a presumption of law that the testator destroyed it with the intention of revoking the will, and the burden of proving to the contrary is on the propounder of the will. See Lyons v. Bloodworth, 199 Ga. 44, 33 S.E.2d 314 (1945).
Whether or not this presumption is rebutted by the evidence offered by the propounder is for the determination of the jury. Newton v. Higdon, 226 Ga. 649, 177 S.E.2d 57 (1970). Where evidence is submitted by a proponent of a will in an attempt to overcome a presumption of revocation, "the question whether the presumption has been overcome is for determination by the jury in view of all the evidence and circumstances in the case, and the credibility attributed by the jury to the witnesses." Wood v. Achey, 147 Ga. 571, 573, 94 S.E. 1021 (1917). This court in Helms v. Robertson, 236 Ga. 297, 298, 223 S.E.2d 636, 638 (1976) said: "(t)he question of whether the propounder carried the burden of overcoming the presumption that the original will was revoked was for the jury." Citing Newton v. Higdon.
In light of the holdings of the above-cited cases, was the grant of a judgment notwithstanding the verdict by the court below proper? In Crews v. Crews, 219 Ga. 459, 463, 134 S.E.2d 27, 30 (1963), this court held: (...
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