LYONS v. BLOODWORTH et al.

Supreme Court of Georgia1945-03-06No. No. 15094

199 Ga. 44

Summary · law.co

Holding. The judgment is affirmed. The evidence presented was insufficient to authorize a verdict in favor of the propounder seeking to establish a lost will, as he failed to overcome the presumption of revocation that arises when a will cannot be located after the testator's death.

A will that was last seen in the testator's possession approximately two months before her death could not be located after she died. The party seeking to establish the will's validity argued that the testator lacked mental capacity to revoke it during the period between when she was last seen with the document and when she eventually lost testamentary capacity. However, the court found the evidence insufficient to overcome the presumption that arises when a will disappears after the testator's death. Under applicable law, when a will cannot be produced, there is a strong presumption that the testator intentionally destroyed or revoked it, and the burden falls on whoever seeks to prove the lost will's validity to present adequate evidence rebutting this presumption. The propounder offered only testimony that he did not find the will after the testator's death, which was not sufficient to meet this burden.

The court emphasized that the evidence presented did not establish when, if at all, the testator lost her capacity to revoke the will. Since there was no proof that she became incapable immediately after last being seen in possession of the will, it remained possible that she had deliberately destroyed it while still mentally competent, before any incapacity occurred. The trial court properly rejected the propounder's case because the evidence was legally insufficient to support a judgment in his favor.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a lost will can be established when the testator was last seen in possession of it but later lost testamentary capacity
Burden of proof required to overcome the presumption of revocation when a will disappears
Whether evidence of the testator's mental state supports a finding that she was incapable of revoking the will during the relevant period

Procedural posture

The trial court overruled the propounder's motion for new trial after a verdict was rendered against him, and this appeal challenges that judgment.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Atkinson, Justice.

(After stating the foregoing facts.) Whether any or all of the foregoing testimony in reference to the mental condition of the testatrix after the execution of her will would be sufficient to establish a lack of testamentary capacity such as would prevent her from revoking her existing will need not here be determined. Assuming that after the execution of her will she became mentally incapacitated to revoke the same, yet, from an examination of the testimony relating thereto, there is no definite time indicated therein from which a jury would have been authorized to find that this changed condition occurred. If, after the execution of the will, and while the same was unrevoked and in effect, she lost and never regained testamentary capacity, then she could not have subsequently revoked the will. Harris v. Camp, 138 Ga. 752 (3) (76 S. E. 40); 68 C. J. 797, § 479. Construing the evidence most strongly in favor of the propounder, Dewey Lions, it would appear that the will was in the possession of the testatrix about two months before she went to Augusta, where she died about eight or nine months later. While the propounder testified that “her mind was bad then,” such testimony would not be sufficient to establish that she was incompetent to execute or to revoke a will. Manley v. Combs, 197 Ga. 768 (4) (30 S. E. 2d, 485).

With the will in existence and in her possession, and there being no evidence to show that at that time she was mentally incompetent to revoke the will, then, under the Code, § 113-611, “the presumption is of revocation by the testator, and that presumption must be rebutted by proof.” The only evidence offered to rebut that presumption was the testimony of the propounder, Dewey Lyons, who stated: “I did not find that will after her death.” It not having been shown that the testatrix lost testamentary capacity immediately after last being seen in possession of the will, the possibility of the testatrix having formed an intention to revoke the will, and having carried such intention into effect by destroying the will between the time she was seen with it by Dewev Lyons and the time she lost testamentary capacity, was not precluded. “When a will can not be found after the death of the testator, there is a strong presumption that it was destroyed or revoked by the testator himself, and this presumption stands in the place of positive proof. He who seeks to establish a lost or destroyed will assumes the burden of overcoming this presumption by adequate proof.” Scott v. Maddox, 113 Ga. 795 (2) (39 S. E. 500, 84 Am. St. R. 263); Harris v. Camp, supra; Wood v. Achey, 147 Ga. 571 (94 S. E. 1021); Peek v. Irwin, 168 Ga. 442 (148 S. E. 88).

The court did not err in overruling the motion for new trial: The evidence produced upon the trial was not sufficient to authorize a verdict in favor of the propounder; and accordingly it is not necessary to rule upon the grounds of the motion in reference to objections to evidence produced by the caveators. No question ii raised in the record as to the sufficiency of the probate of the missing will by reason of only two of the three witnesses to the will testifying, and by accounting for the absence of the third witness by proving that she was out of the jurisdiction of the court; and therefore no ruling is made thereon.

Judgment affirmed.

All the Justices concur.