Ware v. Hill , 209 Ga. 214 ( 1952 )

Atkinson', Presiding Justice.

(After stating the foregoing facts.) All the special grounds assert in substance that the court erred in failing to charge the jury that, if the evidence showed that the testatrix left a child surviving her, then a verdict should be rendered for the propounder, in that in such circumstances the caveatrix, Mrs. Hill, would not be an heir at law, because under the undisputed evidence Mrs. Hill was a sister of the deceased, and there was some testimony that Mrs. Tinie Keeter Martin was a daughter of the testatrix, and the failure to so instruct the jury as claimed was error injurious, prejudicial, and harmful to the propounder.

These grounds are insubstantial and without merit, for the reason that it appears from the record that, in the petition of the propounder to probate the will in solemn form, it was alleged that Mrs. Hill was an heir at law of the testatrix, and the court had before it the record in the case, wherein Mrs. Hill and Mrs. Martin filed separate caveats to the probate of the will in the court of ordinary; and when the will was probated in that court, they filed a joint appeal to the superior court, and in Mrs. Martin’s caveat she sought, in addition to the setting aside of the will, a decree adjudicating that she was the child of Mrs. C. E. (Minnie Josie) Keeter by reason of virtual adoption. The only reason why the propounder insists that the court should have charged in this regard was that Mrs. Martin, while testifying as a witness for the caveatrix, stated as a conclusion that the testatrix was her mother. Such statement, standing alone, was not sufficient to raise any issue of fact on the question of whether Mrs. Hill was or was not an heir at law of the testatrix.

The only issue submitted to the jury was whether or not the testatrix, at the time of the execution of the will, had sufficient mental capacity to make a will. The caveatrix admitted -a prima facie case, and aside from that the propounder introduced evidence sufficient to sustain a jury verdict if found for the propounder. The jury having found for the caveat, the question here presented is whether or not there was sufficient evidence to sustain the verdict.

“Where testamentary capacity is the issue, the controlling question to be determined is the condition of the mind at the time of the execution of the will. As tending to illustrate the mental condition at that time, evidence of such condition at other times may be received, but where it is sought to establish testamentary incapacity by such evidence, it does not controvert the positive testimony of the subscribing witnesses unless it would be proof of testamentary incapacity at the time the will was signed.” Fehn v. Shaw, 199 Ga. 747 (35 S. E. 2d, 253), and citations. This rule does not mean that, in order to overcome the positive testimony of the subscribing witnesses, it is essential to establish incapacity by someone who was present when the will was .signed or who saw the testator the day the will was executed. Evidence as to the state of mind of the testator prior to and subsequent to the date of the execution of the will may illustrate the incompetency of the testator at the time of its execution. Where a condition of incapacity is shown to exist prior to the execution of a will, and it is further shown that this condition continues for a period of time subsequent to the date of execution, it is evidence showing incapacity at the time of execution, and controverts the positive evidence of the subscribing witnesses, thus making an issue of fact for the jury. See Manley v. Combs, 197 Ga. 768 (1) (30 S. E. 2d, 485); Pantone. v. Pantone, 206 Ga. 305 (1) (57 S. E. 2d, 77), and citations; Brock v. State, 206 Ga. 397 (1) (57 S. E. 2d, 279), and citations. There being such evidence here, and the jury having found in favor of the caveat, the trial judge did not err in denying the motion for new trial.

Judgment affirmed.

All the Justices concur, except Wyatt, Head, and Almand, JJ., who■ dissent.