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In Lyons v. Bloodworth, 199 Ga. 44 (1) (33 S.E.2d 314), it was said: "Where a will cannot be found after the death of the testator, there is a strong presumption that it was destroyed or revoked by the testator, and this presumption stands in the place of positive proof; and one who seeks to establish a lost or destroyed will assumes the burden of overcoming this presumption by adequate proof."
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15094.
MARCH 6, 1945.
Probate of will. Before Judge Perryman. Glascock superior court. October 17, 1944.
Pierce Brothers, Jack D. Evans, and Randall Evans, for plaintiff.
J. Roy McCracken, Casey Thigpen, and Stevens Stevens, for defendants.
1. Where a will cannot be found after the death of the testator, there is a strong presumption that it was destroyed or revoked by the testator, and this presumption stands in the place of positive proof; and one who seeks to establish a lost or destroyed will assumes the burden of overcoming this presumption by adequate proof.
( a) The foregoing presumption may be rebutted by proof that the will was lost or destroyed after the death of the testator, or before his death without his consent, or that the testator did not have possession of the will after its execution, or that he had lost his testamentary capacity before his death, and that the will was in existence at the time the mental alienation occurred, and the like.
2. There was no evidence in the instant case to rebut the presumption above stated.
No. 15094. MARCH 6, 1945.
This case was tried in the superior court on appeal from the court of ordinary. Dewey Lyons filed a petition to establish and probate the will of his mother, Mrs. Sallie F. Lyons. He alleged the execution of her will, and that after its execution and while the will was still in effect the testatrix became mentally incompetent to revoke the same, but that after the loss of her mental capacity the will had been lost or destroyed, either before or after her death. Other heirs filed a caveat. The jury found in favor of the caveators, and the propounder excepted to the overruling of his motion for new trial.
It appeared on the trial that the will was executed in February, 1940, and that the testatrix died in November, 1943. Under the terms of the will, as established, Dewey Lyons was the principal legatee. From the testimony of both the propounder and the caveators, it seems that at some time before her death the mind of the testatrix became to some extent affected. About eight months or a year before her death she moved to Augusta, Georgia, and resided there with her daughter, and died there.
It was the contention of the propounder that after the execution of the will, and before loss of mental capacity by the testatrix, he saw the will, acquainted himself with its contents, and had a conversation with the testatrix in reference to it. As to this, he testified: "I know when she came to Gibson to make her will. . . Her health was not so good. . . She had her mental faculties all right. She had a spell of sickness about two years after she made the will. That illness was pretty severe. She had a stroke. . . It pulled her face a little sideways. That affected her mental faculties a little bit. She got worse. She got pretty bad. . . She was able to know what she was doing part of the time. That took place about two and a half years before her death. . . She left in the fall of 1942. . . When she left, her health got bad and her mind was right bad." As to establishing the existence of the will after its execution, the propounder testified: "The will that my mother made when she came to the courthouse she read to me about a month afterwards. . . She said: `I went down to Gibson . . I had a paper wrote. . . I will read it to you,' and pulled it out and read it. . . `If a fire gets in this house, carry the box out. . . Save this paper.'" The propounder further testified: "I did not find that will after her death. I saw the will about two months before she went to Augusta. Her mind was bad then. She went in that box and told me to take it back to Sparta, and I said, `That will?' She said, `Yes.' I said, `It has been in the box, just put it back I remember, she died about eight or nine months after asking me to take this box. My mother died in November, 1943. . . She was in Augusta about eight or nine months before she died."
Other evidence produced by the propounder relating to the mental condition of the testatrix was as follows: Alvin Raley: "For the last year or so her mental condition was bad. I should not think she had mental capacity to make contracts. . . Her mind was bad for one year before her death. . . I lived there in 1941. Her mind was bad then. It looked like it stayed about the same. I would say part of the time it looked to me like she didn't have mind enough to know what she was doing, and then again I reckon it seemed she would." John Gibson testified: "In the last year or two of her life Mrs. Lyons was not the same woman. I couldn't say to what extent she lost her capacity to do and know things — the last part of her life she did not hardly know anything. From my observation of her in the latter years of her life, she was not able to make a contract or deed that I know of, or anything like that. . . Mrs. Lyons's mind was bad a couple of years before her death. . . Her mind was bad in 1942 and 1943. . . I noticed, when you carried her money sometimes, she talked funny about money."
Witnesses produced by the caveators gave the following testimony: Julian Amonson: "I never heard that her mind was bad until after she went to Augusta. . . I saw her at least once or twice a month for the last three or four years. . . When she left here to go to Augusta, her mind was all right, and after then I heard it was not. . . The last time I stopped by she was in fairly good health, seemed like her mind was; she was feeble. It was in 1943 the last time I stopped. Her mind was bad when she left here. . . I would say she lost her mind about 1942 or 1943, something like that, after she went to Augusta, . . sometime about the last of 1942. Her mind seemed to be good then." W. C. Braswell: "I never heard of Mrs. Lyons's mind being bad prior to the time she went to Augusta, . . the last year of her life. . . I would not say that her mental faculties got bad after she went to Augusta. I did not see her down there but she came back, . . and called at my house." Vick Lyons: "Her mental faculties began to get right bad the latter part of 1943. The last time I went there in October she was perfectly helpless. . . She said she knew me, but I don't think she did." Mrs. Sallie Mae Bloodworth: "About the last year my mother lived she lived with me in Augusta. My mother died November 4, 1943. I brought her to my house . . in . . September . . 1942. . . She was in the hospital about a week before she died. . . With reference to the state of my mother's mind during the last year of her life, she had kidney and heart trouble, and naturally her mind became cloudy at times and she was always under the influence of medicine. . . Prior to coming to my house I would not say her mind was bad. . . She had a slight facial stroke on the left side, just affected her mouth. It did not affect her mind at all. . . I should think she had had the stroke before she made this will to Dewey. . . I have been working since 1932, when I graduated. I have been nursing all over the United States in mental hospitals, having had twelve years' experience in that work. From my experience in observing and nursing mental patients, I would say the mental condition of my mother during the last year of her life was good up until . . just a short time before she died. . . She died in November. Her mind was cloudy then. I don't remember whether it was cloudy in June of 1943."
1. 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 Dewey 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." 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).
2. 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 is 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.