Woods v. Giedd

Weltner, Justice,

dissenting.

I am in full agreement with the majority’s interpretation of OCGA § 53-3-6.

I disagree, however, with the holding in Division 2, and suggest that the evidence indicated by the majority as sufficient to create a genuine issue of fact could not support a verdict in the favor of the appellees. The evidence absolutely excludes the possibility that there could have been a will in the safe deposit box at the time of the decedent’s death.

For appellants to prevail, then, a jury must infer from “these bits of evidence” (the majority’s phrase):

(a) that there was, in fact, a will in the safe deposit box, as stated by Mr. Woods;

(b) that within two days of his death, the will was removed from the safe deposit box; and

(c) that, after his death, the will became lost.

These hypotheses simply cannot stand in the light of the undisputed testimony that the safe deposit box had not been entered since 1984, the year preceding Mr. Woods’ death.

Decided June 4, 1987 Reconsideration denied June 17, 1987. Sylvester & Assoc., Chuck Sylvester, Sell & Melton, Edward S. Sell, Jr., Buckner F. Melton, Lori L. Chapman, for appellant. W. Edward Meeks, Jr., for appellee.

I am authorized to state that Justice Smith joins in this dissent.