Spivey v. Spivey
Spivey v. Spivey
Opinion of the Court
(After stating the foregoing facts.) “Upon the trial of an issue arising upon the propounding of a will and a caveat thereto, the burden, in the first instance, is upon the propounder of the alleged will to make out a prima facie case by
Literally, the words, “prima facie,” mean “at first view.” A “prima facie case” may be defined as one in which the evidence in favor of a proposition is sufficient to support a finding in its favor, if the opponent produced no evidence, or if all the evidence to the contrary be disregarded.
To make out a prima facie case, and to be entitled to a judgment of probate in solemn.form, the propounder must introduce at the hearing all the subscribing witnesses, if living and accessible, or proof of their signatures, if dead or inaccessible. Code, § 113-602. They must be introduced, for examination, even though the propounder knows that their testimony will be unfavorable to him. If some or all of the subscribing witnesses cannot testify as to the testamentary capacity and mental condition of the testator, or give testimony adverse to the propounder and favorable to the caveator, such failure of memory or hostility will not necessarily defeat the will. The propounder may make the proof required by law by other witnesses who can testify as to the essential facts, and upon sufficient proof being made the will may be probated. Huff v. Huff, 41 Ga. 696 (3); Gillis v. Gillis, 96 Ga. 1 (23 S. E. 107, 30 L. R. A. 143, 51 Am. St. R. 121); Wells v. Thompson, 140 Ga. 119 (78 S. E. 823, 47 L. R. A. (N. S.) 722, Ann. Cas. 1914C, 898); Bowen v. Neal, 136 Ga. 859 (72 S. E. 340) ; Crutchfield v. McCallie, 188 Ga. 833, 841 (5 S. E. 2d, 33). In Thompson v. Davitte, 59 Ga. 472, 475, Judge Bleckley, in considering the proof necessary to shift the burden to the caveator, said: “The truth is, that what the propounders have to carry, oh
In the present case, the three subscribing witnesses to the will were introduced at the hearing and testified to the formalities of execution as required by law. Two testified that the will was read to the testator in their presence; the third, that he thought it was.read before he arrived. They testified that the testator signed the will freely and voluntarily,, and stated to them that it was his will and what he wanted to do with his property. On the question of mental capacity to make the will, J. M. Gregory, one of those subscribing, testified that he talked with Mr. Spivey for twenty or twenty-five minutes before the other witnesses arrived, and that he mentioned and talked about several things and told them like they were. “With reference to whether Mr. Spivey was at the time he signed that will of disposing mind and memory, he seemed to know what he was talking about.” P. C. Rossee, a subscribing witness, testified: “I think Mr. Spivey was in sound and disposing mind that day, so far as I knew. He seemed to be rational.” This witness also testified: that Mr. Spivey would leave money with him at the store and would later come or send back for part of it to pay his bills; that, after the will was executed, Mr. Spivey would occasionally come by the store to make purchases, and always seemed to know just what he wanted; that Mr. Spivey kept up with this money and always knew just how much he had at the store; that he didn’t notice any particular change in Mr. Spivey the day he signed the will, except that he seemed to be a little older. John D. Watterson, the other subscribing witness,
The positive testimony of the three subcribing witnesses that the testator signed the will freely and voluntarily and after stating that it was his will and what he wanted to do with his property, and the positive testimony of two of the subscribing witnesses that the testator was apparently of a sound and disposing mind at the time he executed the will, was sufficient to establish a prima facie case on the issue, of mental capacity, and would be sufficient to support a verdict in favor of the propounder in the absence of other evidence. There is no positive evidence, on the propounder’s side, to the contrary. The contention of the caveator on this issue is therefore without merit.
Was there any evidence to show that the testator was not of sound and disposing mind and memorjr cot the time the will was executed, and to authorize the verdict sustaining the caveat?
For the statutory rules on determining testamentary capacity, see the Code, §§ 113-201, 113-202, 113-204, 113-205. In accordance with these statutory provisions, it has been held by this court: “A person has testamentary capacity who understands the nature of a testament or will, viz., that it is a disposition of property to take effect after death, and who i's capable of remembering generally the property subject to disposition and the persons related to him by the ties of blood and of affection, and also of conceiving and expressing by words, written or spoken, or by signs, or by both, any intelligible scheme of disposition. If the testator has sufficient intellect to enable him to have a decided and rational desire as to the disposition of his property, this will suffice.” Slaughter v. Heath, supra. “Decided” simply means a mental capacity to frame a desire that is certain, or with distinct limits, and “rational” means that the desire must be consistent with reason. Hill v. Deal, 185 Ga. 42, 46 (193 S. E. 858). In Gardner v. Lamback, 47 Ga. 133, 193, this court held: “To make one incapable of making a will from insanity . . there must be a
To sustain the verdict refusing probate, the caveator relied on the testimony of three expert and five non-expert witnesses. None of the three physicians saw the testator on the day when the will was executed. Dr. Wood, the principal expert witness, who attended the testator in his last years, did not see him between March, 1945, and October, 1946 — a period of about one year prior to the date of the will and about six months after. Dr. Fulgham did not see him during the same period. Only one non-expert witness testified that he saw the testator on May 14, 1946. The expert testimony was, in general, that the testator’s mental condition was “largely due to old age.” Dr. Wood testified: “I would say, in my opinion Mr. Spivey was not competent on May 14, 1946. I don’t know what amount of mental competence is necessary to qualify a man to make a will.” On redirect examination, he testified: “I could not say that on May 14, 1946, Mr. Spivey was incapable of transacting any business, making a will, or any other business — if it was anything that involved any responsibility, I would not think he would be able to do it.” Dr. Fulgham testified that he never saw Mr. Spivey when he thought him “capable of transacting business to his advantage.” Dr. Griffith testified that
The evidence produced by the caveator on the hearing of this case was no more sufficient to show testamentary incapacity and to authorize a verdict in his favor than that dealt with by this court in several cases in which the judgments denying probate were reversed. In Orr v. Blalock, 195 Ga. 863 (25 S. E. 2d, 668), the caveator offered a number of non-expert witnesses who testified to having seen the testator at various times before and after the will was executed, but none who saw him when the will was actually signed, and who testified that when they saw him, he was mentally incapable of having a rational desire as to the disposition of his property. In Scott v. Gibson, 194 Ga. 503 (22 S. E. 2d, 51), a witness testified: “When I come home she was washing clothes, and she said she felt bad, and come over and fell down on the porch, and she was sick from then until she died. She was in a bad condition when the women carried her in the house. She continued
The mind of the testator could have been “bad,” or such that he could not “transact business to his advantage,” and still he could have possessed sufficient intelligence to enable him to have a “decided and rational desire as to the disposition of his property.” The opinions of the non-expert witnesses that the mind of the testator was “bad” were not based on such facts and circumstances as to authorize the conclusion that he was totally devoid of the capacity to have a “decided and rational desire as to the disposition of his property.” The test is whether he had such mental capacity at the time the will was actually executed. The testimony of both the expert and non-expert witnesses was insufficient to overcome the positive testimony of two of the subscribing witnesses that at the time the will was executed the testator apparently had testamentary capacity. The evidence therefore demanded a verdict in favor of the propounder, and the trial court erred in denying the motion for new trial.
Judgment reversed.
Reference
- Full Case Name
- SPIVEY v. SPIVEY
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- Published