Hart v. Fortson

Hunt, Presiding Justice. L. C. Hart appeals the trial court’s grant to S. T. Fortson of j.n.o.v. We reverse and remand. Boyd Fortson, the testator, executed a will dated April 22, 1991, in which he left all of his property to his brother, S. T. Fortson. In September 1991, L. C. Hart, Boyd Fortson’s nephew, arranged for the preparation of a new will for his uncle which named him executor and sole beneficiary. Hart took this will to his uncle’s house, where it was executed by Fortson in the presence of witnesses. The probate court denied Hart’s petition to probate the will and granted S. T. Fortson’s caveat, finding that Hart, as propounder of the will, had failed to prove that the testator knew the contents of the will or that he had testamentary capacity. On appeal to the superior court (OCGA § 5-3-2), a jury rendered a verdict in favor of Hart, but the trial court granted Fortson’s motion for j.n.o.v. In reviewing the grant of a j.n.o.v., [390] we must decide whether all the evidence demanded it, or whether there was some evidence supporting the verdict of the jury. [Cit.] A judgment notwithstanding the verdict is improperly granted in the face of conflicting evidence, and an appellate court must view the evidence in the light most favorable to the party who secured the jury verdict. [Cit.] Pendley v. Pendley, 251 Ga. 30, 30-31 (302 SE2d 554) (1983). In his motion for j.n.o.v., S. T. Fortson contended that the testator did not know that the document he was signing was his will, and had no knowledge of the contents of the will, and the trial court granted the motion on these grounds. Evidence was presented, as is acknowledged in Fortson’s motion for j.n.o.v., that the testator, in the presence of others, when he signed the will, stated that he wanted to leave all his property to L. C. Hart; there was also testimony that the testator talked with an attorney about a new will several days before his death. There exists, therefore, a conflict in the evidence as to the testator’s knowledge of both the document’s nature and its contents. Since there was sufficient evidence to support the jury’s verdict, the trial court’s j.n.o.v. must be reversed. The case is remanded to the trial court for consideration of the motion for new trial filed contemporaneously with the motion for j.n.o.v. OCGA § 5-5-21. Judgment reversed. All the Justices concur, except Fletcher, J., who dissents.