Opinion
17228.
OCTOBER 11, 1950.
Probate of will. Before Judge Hendrix. Fulton Superior Court. May 31, 1950.
Rache Bell, for plaintiff.
Douglas, Evans Cole, and George Carroll, for defendants.
An adjudication of insanity of a deceased at a time prior to the execution of the will sought to be probated raises a presumption of incapacity at the time the instrument was executed. While this is a rebuttable presumption, it is a question of fact for the jury, under conflicting evidence, whether or not the incapacity existed at the time of the execution of the will.
No. 17228. OCTOBER 11, 1950.
Mrs. Sudie W. Belk offered for probate in solemn form an alleged will of Bill Souranis, executed on February 5, 1948. By the terms of the will all of the property of the deceased was given to Mrs. Belk. George Colleas, the executor named by the deceased, refused to act, and Mrs. Belk qualified as administratrix cum testamento annexo. George Colleas, the Greek Orthodox Church of Atlanta, and Panargiakos Society Danaos, as legatees under an alleged will of the deceased, dated January 7, 1947, filed a caveat to the will dated February 5, 1948. One ground of the caveat was that, at the time of making the will, the deceased was not of sound and disposing mind and memory. The ordinary found in favor of the propounder, and the caveators appealed to the superior court.
On the trial of the issue, the propounder introduced the testimony of the three subscribing witnesses, who testified that the deceased was apparently of sound mind at the time he executed the will. The caveators introduced in evidence: certified copies of the proceedings in a lunacy inquisition, and the order of the ordinary therein, adjudicating the deceased to be "a person of unsound mind," dated March 10, 1947; the certificate of the Milledgeville State Hospital, showing his committal to that hospital on March 13, 1947; and the order appointing George Colleas as guardian of the deceased, dated July 24, 1947. They also introduced the testimony of a physician, who stated that he had treated the deceased for cardio-vascular cerebral syphilis; that he saw the deceased on August 7, 1947, and he showed considerable mental deterioration from his condition before his illness in December, 1946; that he last saw the deceased in January, 1948, and in the period from August 7, 1947, until January, 1948, there would be slight flickers of improvement in his mental condition but, basically, he made no further progress. Several witnesses for the caveators related that the deceased had a heart attack in December, 1946, and was taken to St. Joseph's Infirmary in Atlanta; that while he was there he became of unsound mind and attempted to commit suicide; that he was removed to the Brookhaven Sanitarium at Stone Mountain, where his conduct was entirely irrational; that he was committed to the Milledgeville State Hospital; and that he was furloughed from the hospital in August, 1947, and taken to a convalescent home in Atlanta. The witnesses for the caveators related numerous incidents showing the conduct of the deceased during the period from August, 1947, until the date of his death on February 13, 1948. Some of these incidents were: The deceased would not know his friends, and would not speak to them; he tried to jump from a moving car; he thought the OPA and FBI were after him, and were going to shoot him; on one occasion he tried to get the driver of the car in which he was riding to run over some (non-existent) women; he did not recognize the child of a friend of many years, but insisted that she had no children; when a friend would stop at a filling station to buy gasoline for his car, in which the deceased was riding, the deceased would suggest to the friend that he give the car to the filling-station operator. One of these witnesses testified that he had seen the deceased almost every day during this period; another, that he had seen him two or three times a week; and another, that she had seen him about twice a week. The propounder introduced testimony of witnesses who stated that they had associated with the deceased during this same period of time, and that his conduct was rational.
The jury found in favor of the caveators. The propounder filed a motion for new trial on the usual general grounds, and the exception here is to the judgment overruling the motion.
The only inquiry for this court to make is whether there was sufficient evidence to sustain the verdict that was rendered, and not whether there was evidence which would have supported a different finding. Thompson v. Mitchell, 192 Ga. 750, 753 ( 16 S.E.2d 540); Manley v. Combs, 197 Ga. 768, 776 ( 30 S.E.2d 485). The propounder insists that none of the evidence of the caveators showed that the deceased did not have testamentary capacity at the time the will was executed, and that the evidence of incapacity of the deceased before and after the will was executed would not overcome the proof of capacity at the time of its execution. Numerous cases are cited in support of this contention.
In the present case, there were introduced in evidence properly certified copies of the proceedings in a lunacy inquisition, wherein the deceased was adjudicated to be a person of unsound mind. The deceased was on furlough from the State Hospital for the insane at Milledgeville at the time he executed the will sought to be probated, and there is no evidence that he ever obtained an order adjudging that he had been restored to sanity, under the provisions of the act approved March 27, 1947 (Ga. L. 1947, p. 1174; Code, Ann. Supp., § 49-610.1, 49-610.7).
"When insanity is once found, upon an inquisition of lunacy, it is presumed to continue; and the onus is cast upon those offering a will, to show that the disqualification has been removed." Terry v. Buffington, 11 Ga. 338 (5) (56 Am. D. 423). "Such judgment substitutes for the general presumption of sanity a rebuttable presumption of insanity." Akin v. Akin, 163 Ga. 18 ( 135 S.E. 402); Field v. Lucas, 21 Ga. 447 (68 Am. D. 465); Lucas v. Parsons, 23 Ga. 267, 278. "Incapacity at the time of the execution of an instrument may be shown under the presumption arising from proof that on a previous lunacy inquisition a decedent was adjudged insane, . . " Martin v. Martin, 185 Ga. 349, 352 ( 195 S.E. 159).
The adjudication of insanity of the deceased at a time prior to the execution of the will sought to be probated raised a presumption of incapacity at the time of its execution. While this was a rebuttable presumption, it was a question of fact for the jury, under the conflicting evidence, whether or not the incapacity existed at the time of the execution of the will. It can not be held, as a matter of law, that there was no evidence to support the finding of the jury.
Judgment affirmed. All the Justices concur.