MITCHELL et al. v. HILLSMAN., 241 Ga. 289, 244 S.E.2.d 871 (1978)

Supreme Court of Georgia

Status: SUBMITTED

Docket Number: 33448

Parts: HILL, Justice.

Linked as:

Summary

Judgment affirmed. All the Justices concur.

Summary

Judgment affirmed. All the Justices concur.

Text

Hill, Jones & Associates, Joseph Jones, Jr., E. Lundy Baety, Michael C. Ford, for appellants.

Appellants are the caveators to the will of Lillie Mae Moore; they are appealing the grant of summary judgment to the propounder, appellee. The sole basis for the caveat (at the time of the hearing on this motion) [1] was the question of undue influence over the testatrix allegedly exercised by appellee, who is the sole legatee and devisee.

The caveators are the nieces of the testatrix, and the executrix of the estate of the testatrix's mother (who died during the pendency of this action.) Appellee was not related to the testatrix. However, appellee had rented half of the testatrix' house for at least seven years, and had managed the testatrix' financial affairs after the death of the testatrix' husband.

In support of her motion for summary judgment appellee introduced depositions which showed that the will was duly executed. Moreover, one of the witnesses to the will testified that she had been a close friend of the testatrix for forty years, and that at the time the testatrix executed the will she was of sound mind, and was acting freely and voluntarily. Appellee was not present when the will was executed. This testimony established a prima facie case for the admission of the will, and negated the allegations of undue influence.

No direct evidence of undue influence was produced, thus the existence of material issues of fact must be established by inferences from the circumstances, if at all. Stephens v. Bonner, 219 Ga. 703 (135 SE2d 409) (1964).

We find no circumstances surrounding the execution of the will which would give rise to an inference of undue influence. The total lack of any direct evidence of undue influence, combined with the clear and positive testimony that the testatrix was of sound mind, that she signed her will freely and voluntarily, and that the person allegedly exerting undue influence was not present, required the grant of summary judgment for appellee. Crutcher v. Crawford Land Co., 220 Ga. 298 (138 SE2d 580) (1964).

The remaining enumeration of error is without merit.

Carr, Wadsworth, Abney & Tabb, Noah J. Stone, for appellee.

1978

Notes:

1. Other grounds had been abandoned.