122 Ga. 396 | Ga. | 1905
Dr. Turner P. Oliver was a citizen of Georgia, residing in Macon county, near the town of Oglethorpe. On November 17, 1894, he made a will, which was duly executed in accordance with the requirements of the laws of Georgia. This will disposed of his entire estate, consisting of a plantation near Oglethorpe, whereon he resided, and various personal property. By the terms of this will he gave to his wife, who was then in life, the plantation for and during her natural life, with remainder over in fee to the children and grandchildren of his deceased brother. These were Mrs. Ebbie Slater of Marshall, Texas, Mrs., Frank Lawson of Carthage, Texas, and the three children of Mrs. Theresa MeJimpsey, deceased, who was also a daughter of his deceased brother. Nearly all of his personal estate also was given to these legatees. Judge W. H. Fish was appointed executor of this will. Some time after the making of this will Dr. Oliver’s wife died, and in the spring of 1903 he changed his residence and domicile to Marshall, Texas, leaving nothing in Georgia but the real estate in and near Oglethorpe. In the latter part of September, 1903, he made another will, in the first item of which he uses this language: “ and especially repealing and cancelling all other wills heretofore made by me, and do declare that they are revoked, and this shall, to all intents and purposes, be my last will and testament. By the terms of this will he gave his entire estate, real and personal, to the children and grandchildren of his deceased brother, E. G. Oliver, whose names are given, above. He appointed his niece, Mrs. Ebbie Slater, and her husband, Joe W. Slater, the executors of this last will. This will, however, was executed in the presence of but two witnesses. Although Dr. Oliver in his Texas will used language of revocation as to all previous wills, he nevertheless did not destroy his Georgia will of November, 1894, but preserved the same without obliteration in any respect whatever, and the same was found intact and unmutilated among his papers after his death. The Texas will was duly probated by the executors, and they distributed all the personal property according to
The question, therefore, pr'esented by this record is whether the Texas will made by Oliver in September, 1903, revokes the Georgia will made by him in November, 1894. In our opinion it does not. The revocatory language used by the testator in the first item of the Texas will works no revocation of the Georgia will, for the reason that the former is attested by only two witnesses. Any writing containing an express revocation of a will must be executed with the same formality and attested by the same number of witnesses as the will itself. Civil Code, §§3341, 3342; Barksdale v. Hopkins, 23 Ga. 332; Howard v. Hunter, 115 Ga. 357; Oetjen v. Oetjen, 115 Ga. 1004. The Texas will, being attested by only two witnesses, although such attestation be sufficient under the laws of that State, is, so far as it relates to
Judgment affirmed.