Bullock v. Martin

87 S.E. 1058, 144 Ga. 731, 1916 Ga. LEXIS 107

• Court: Supreme Court of Georgia
• Decided: February 23, 1916
• Status: Published

Opinion

Per Curiam.

C. J. Martin, administrator with the will annexed of John A. Bullock, was cited by the ordinary to prove in solemn form the will of his testator, which had been previously probated in common form. A caveat was filed, and by consent the case was appealed to the superior court. A verdict was returned for the propounder. The court charged the jury that in order for the propounder to prevail it was necessary for him to show, “by the preponderance of the testimony, that this is the last will and testament of the decedent, and that it is properly executed as such. If he brings that weight of testimony to you, he is entitled to a verdict at your hands, unless it is met • by other testimony which would controvert that fact.” The burden was on the propounder, in making out a prima facie case, not only to show the factum of the will, but also that it was freely and voluntarily executed as such, and that the decedent at the time of its execution was apparently mentally capable of making a will. Edenfield v. Boyd, 143 Ga. 95 (84 S. E. 436); Wells v. Thompson, 140 Ga. 119, 122 (78 S. E. 823, 47 L. R. A. (N. S.), 722, 33 Ann. Gas. (1914C) 898); Oxford v. Oxford, 136 Ga. 589 (71 S. E. 883); Slaughter v. Heath, 127 Ga. 747, 760 (57 S. E. 69, 27 L. R. A. (N. S.) 1). The error in the foregoing instruction was rendered especially harmful by the instruction immediately following: “Now when the caveators come in and file their caveat, their objections to the propounding of this will in solemn form, then if the plaintiff makes out its [his] case under the rules I have just given you, and the caveators undertake to set up their defense to it, their objections to it, which are among other things that he was not .of sufficient mind, mental capacity, to' make a will, then that burden is on them the same as it would be on the plaintiff.”

February 23, 1916.

Probate of will. Before Judge Meadow: Madison su]Derior court. September 18, 1914.

J. F. L. Bond and W. W. Starlc, for plaintiffs in error. Berry T. Moseley, contra.

Judgment reversed'.

All the Justices concur.