Melton v. Shaw

Hill, Justice.

This appeal is from summary judgment granted to Clara Driskell Shaw, the propounder of a will, by the Douglas Superior Court. L. M. Melton, Jr., the caveator, appeals. This controversy arises because the will offered for probate was typed on onionskin paper but bore original ink signatures and date.

The propounder filed an application to probate the will of Lou Allen Melton in probate court; a caveat to the will was filed. After a hearing the probate court found that the will was a copy and refused to admit it to probate. The propounder appealed to the Douglas Superior Court. The *251 superior court granted the propounder’s motion for summary judgment after finding that the evidence showed without dispute that the document offered for probate was the original will of Mrs. Williams.

Submitted April 23, 1976 Decided June 30, 1976 Rehearing denied July 14, 1976. Noland & Coney, John L. Coney, for appellant. James, Johnson & Pitts, Robert J. James, for appellee.

At the hearing before the probate court the propounder presented all the witnesses to the execution of the will still living. They testified to the execution, the attestation and the mental capacity of the testatrix. They testified that testatrix and witnesses signed only one document, the one offered for probate. The caveator offered no evidence at that hearing nor upon the motion for summary judgment in the superior court.

The propounder made out a prima facie case for the validity of the will. See Code Ann. § 113-602. The burden then shifted to the caveator to show proof of the grounds of the caveat. Bowles v. Bowles, 211 Ga. 461 (1) ( 86 SE2d 318 ) (1954); Spivey v. Spivey, 202 Ga. 644, 649 ( 44 SE2d 224 ) (1947). Here the caveator contended that the will was a copy rather than the original, but he introduced no evidence or affidavit to support such a contention before either the probate court or the superior court. The evidence showed without dispute that the document offered for probate was the original will of the testatrix; hence Code § 113-611, applicable to proof of a copy of a will if the original was destroyed, is inapplicable here. The superior court did not err in granting the propounder’s motion for summary judgment.

Judgment affirmed.

All the Justices concur.