Wilson v. Wilson

361 S.E.2d 381, 257 Ga. 584, 1987 Ga. LEXIS 960

• Court: Supreme Court of Georgia
• Decided: October 29, 1987
• Docket: 44776
• Status: Published

Opinion

Hunt, Justice.

Appellants, Joseph L. Burton, M.D., and the children of John Wilson, Jr., appeal from the trial court’s denial of their petition, brought in connection with a caveat action, to exhume John Wilson, Jr.’s body. We affirm.

1. Appellants enumerate as error the trial court’s holding that they lack standing under OCGA § 45-16-45, the statute authorizing medical examiners to petition the superior court for an order to disinter a body. They argue that they have standing because Dr. Burton is a medical examiner. However, it is uncontroverted that in this case Dr. Burton was not acting in his official capacity as a county medical examiner. It is apparent that OCGA § 45-16-45 is not intended to authorize a medical examiner to bring an action seeking disinterment unless he is acting in his official capacity. See OCGA §§ 45-16-21 (4); 45-16-27. This enumeration is without merit.

2. Appellants also contend the trial court erred by denying their petition on the merits. As noted by the trial court, this court has not ruled on the question whether a petition to disinter may be granted when opposed by the next of kin (in this case, the widow of the deceased). While under compelling circumstances, the trial court might be authorized to issue an order of disinterment, the trial court did not abuse his discretion in denying the petition here. Appellants sought to disinter the deceased’s body in order to perform an autopsy to aid their claim that the deceased lacked the appropriate testamentary intent. The record supports the trial court’s finding that an autopsy in this case would be of little, if any, benefit in determining the deceased’s testamentary capacity at the time he executed his will, approximately five years before his death, and at the time he executed two codicils to that will, respectively, four years and three years before his death.

Judgment affirmed.

All the Justices concur. Decided October 29, 1987 Reconsideration denied November 18, 1987. Joseph B. Bergen, Frederick S. Bergen, for appellants. Gilbert, Whittle, Harrell, Scarlett & Skelton, Wallace E. Harrell, for appellees.