IN RE ESTATE OF ADDIE ETOY HARRIS.
40069.Supreme Court of Georgia.
Decided September 27, 1983. Rehearing Denied October 19, 1983.John D. Watkins, for appellant.
Edward B. Stalnaker, L. Valdi Cooper, for appellee.
WELTNER, Justice.
The propounder appeals from judgment of the superior court sustaining the caveat to the last will and testament of Addie Etoy Harris.
1. Testamentary capacity was at issue before the jury. A subscribing witness, testifying for the propounder, was asked whether the testatrix was "of sound and disposing mind and memory" when the instrument was executed. The witness responded, "Yes, I think she was." The court then sustained an objection by the caveatrix that the question already asked and answered "calls for a conclusion, which is the very issue that this Court is to determine."
"A subscribing witness to a will may give his opinion as to the sanity of the testator at the time of the execution of the will without setting forth facts upon which such opinion is founded." Tinnerman v. Baldwin, 211 Ga. 532 (1) (87 SE2d 65) (1955). The cases of Scott v. Gibson, 194 Ga. 503 (22 SE2d 51) (1942), and Smoot v. Alexander, 188 Ga. 203 (2) (3 SE2d 593) (1939), do not contradict this principle because they relate to witnesses other than subscribing witnesses. Reid v. Wilson, 208 Ga. 235 (1) (65 SE2d 913) (1951).
The court should not have sustained the objection. However, this was harmless in light of the fact that the jury already had heard the answer of this witness, and already had heard the testimony of the *536 other subscribing witness that the testatrix "was decided and rational as to what she wanted done," had signed the instrument "freely and voluntarily," "was in her right mind," "was not confused," "knew what she was doing," and "wanted to do what she did." OCGA § 9-11-61 (Code Ann. § 81A-161); Bailey v. Johnson, 245 Ga. 823, 828 (5) (268 SE2d 147) (1980).
2. The remaining enumerations of error lack any merit.
Judgment affirmed. All the Justices concur, except Smith, J., who dissents.