Wheeler v. Rowell

Supreme Court of Georgia

Wheeler v. Rowell

216 S.E.2d 301, 234 Ga. 403, 1975 Ga. LEXIS 1146

CourtSupreme Court of Georgia

DecidedMay 13, 1975

Docket29851

StatusPublished

Cited by9 cases

This text of 216 S.E.2d 301 (Wheeler v. Rowell) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wheeler v. Rowell, 216 S.E.2d 301, 234 Ga. 403, 1975 Ga. LEXIS 1146 (Ga. 1975).

Pincite

Opinion

Hall, Justice.

This is an appeal from a judgment entered by the Superior Court of Screven County granting summary judgment in favor of the defendants. Plaintiff-appellant, an heir-at-law of testator, filed a caveat to her father’s will on the grounds that (a) decedent was of unsound mind at execution of the will and (b) the decedent was under the undue influence of his son at the time of the making of the will. Appellees (co-executors) moved for summary judgment, supported by an affidavit executed by two witnesses to the will and affidavits executed by the two appellees, which stated that in their opinion the will was voluntary and the product of a sound mind not subject to any undue influence. Appellant’s testimonial evidence consisted of her verified petition for a caveat and a counter-affidavit alleging facts intended to prove the contentions in her petition.

Appellant contends that the question of undue *404 influence and testamentary capacity is a question of fact for the jury. We agree. On a motion for summary judgment the burden of establishing the non-existence of any genuine issue of fact is upon the moving party and all doubts are to be resolved against the movant. Ham v. Ham, 230 Ga. 43, 45 (195 SE2d 429). This is true even as to issues upon which the opposing party would have the trial burden. Ibid. While opinion evidence will make a jury issue, it will not authorize the grant of a summary judgment. Ehlers v. Golding, 227 Ga. 742 (182 SE2d 870); Harrison v. Tuggle, 225 Ga. 211, 213 (167 SE2d 395).

Argued April 14, 1975 Decided May 13, 1975. Cathey & Strain, Edward E. Strain, III, Andrew J. Hill, Jr., Percy J. Blount, for appellant. Harry H. Hunter, E. W. Hill, for appellees.

The trial court erred in granting defendants’ motion for summary judgment.

Judgment reversed.

All the Justices concur.

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Hall, Justice.

This is an appeal from a judgment entered by the Superior Court of Screven County granting summary judgment in favor of the defendants. Plaintiff-appellant, an heir-at-law of testator, filed a caveat to her father’s will on the grounds that (a) decedent was of unsound mind at execution of the will and (b) the decedent was under the undue influence of his son at the time of the making of the will. Appellees (co-executors) moved for summary judgment, supported by an affidavit executed by two witnesses to the will and affidavits executed by the two appellees, which stated that in their opinion the will was voluntary and the product of a sound mind not subject to any undue influence. Appellant’s testimonial evidence consisted of her verified petition for a caveat and a counter-affidavit alleging facts intended to prove the contentions in her petition.

Appellant contends that the question of undue *404 influence and testamentary capacity is a question of fact for the jury. We agree. On a motion for summary judgment the burden of establishing the non-existence of any genuine issue of fact is upon the moving party and all doubts are to be resolved against the movant. Ham v. Ham, 230 Ga. 43, 45 (195 SE2d 429). This is true even as to issues upon which the opposing party would have the trial burden. Ibid. While opinion evidence will make a jury issue, it will not authorize the grant of a summary judgment. Ehlers v. Golding, 227 Ga. 742 (182 SE2d 870); Harrison v. Tuggle, 225 Ga. 211, 213 (167 SE2d 395).

Argued April 14, 1975 Decided May 13, 1975. Cathey & Strain, Edward E. Strain, III, Andrew J. Hill, Jr., Percy J. Blount, for appellant. Harry H. Hunter, E. W. Hill, for appellees.

The trial court erred in granting defendants’ motion for summary judgment.

Judgment reversed.

All the Justices concur.

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Bluebook (online)

216 S.E.2d 301, 234 Ga. 403, 1975 Ga. LEXIS 1146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wheeler-v-rowell-ga-1975.

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