Joseph Cashmir Yuzamas began living with Rosa Mary Clark in 1971. In 1973, he was divorced from his second wife. On February 23, 1976, he executed his will, referring to Rosa Mary Clark as his wife and naming her as his sole beneficiary. Following his death on August 2, 1976, Rosa Mary Clark Yuzamas petitioned the Probate Court of Jones County to admit the will to probate in solemn form. Joseph Charles Yuzamas, testator's son who had not seen or spoken with his father since 1967, filed a caveat. The probate court admitted the will to probate and the caveator appealed to the superior court where a de novo jury trial was begun. At the close of the evidence, the trial court directed a verdict for the propounder, Rosa Mary Clark Yuzamas. The caveator appeals, urging that the grant of the directed verdict was error.

The propounder argues that the evidence shows without contradiction that she was the common law wife of the testator, that as his wife she was not a stranger within the meaning of Code 113-106, that hence the "slightest evidence of aberration of intellect" test of Code 113-106 is not applicable here, that the traditional test of testamentary capacity is therefore applicable here, and that the grant of a directed verdict was proper under the traditional test of testamentary capacity. Propounder relies on Fehn v. Shaw, 199 Ga. 747 (35 SE2d 253) (1945); Walters v. Walters, 151 Ga. 527 (107 SE 492) (1921); and Terry v. Buffington, 11 Ga. 337 (1852).

After the subscribing witnesses testified favorably as to the execution of the will and the mental capacity of the testator at the time of execution, the propounder testified that she was the testator's common law wife and lived with him as such from 1971 until his last illness. This testimony was corroborated by testator's attorney who testified that testator considered propounder to be his wife at the time he discussed the preparation of his will. Caveator offered the testimony of testator's second wife who testified that she was divorced from testator in 1973, that she talked with him by phone in early 1976, that she asked him why he was living the way he was living, that he said that he had his own living quarters but needed someone to look after him, but that she never asked if he was living with the propounder and he never discussed marriage in relation to the propounder. This testimony did not raise an issue as to common law marriage. (In fact, the existence of such marriage does not appear to have been seriously contested at trial.)

We therefore find that Code 113-106 and its aberration test are not applicable here. Similarly, English v. Shivers, supra, and other cases applying Code 113-106 are not applicable here.

Caveator next argues that there was an issue of fact as to whether testator had the necessary capacity to execute a will under the traditional test. Code 113-202. Here, the two subscribing witnesses gave positive testimony that testator did have testamentary capacity at the time the will was executed. Under Fehn v. Shaw, supra, 199 Ga. at 754, evidence of a testator's mental condition at times other than the signing of the will "does not controvert the positive testimony of the subscribing witnesses unless it would be proof of testamentary incapacity at the time the will was signed." In this case, there is no such proof. One doctor, who treated testator for problems associated with alcoholism from December 29, 1975, until January 21, 1976 (one month before the will was signed), testified that testator suffered from an "organic brain syndrome, which means that his mind isn't working as well as it did before he got sick," and that this was manifested by repetition of the same question. He referred to testator as irrational at that time, but also stated he recognized people and knew where he was: "He was oriented but inattentive perhaps . . ." This testimony did not amount to testimony that testator lacked testamentary capacity either in January 1976 or thereafter.

There was not in this case sufficient evidence to controvert the testimony of the subscribing witnesses ( Fehn v. Shaw, supra), and the trial court did not err in directing a verdict for the propounder. See also Cobb v. Thompson, 236 Ga. 261 (223 SE2d 658) (1976).

William C. Randall, Alphonso Bailey, for appellee.