40 S.E.2d 45 | Ga. | 1946
1. While the record shows that the regular judge of the Cherokee Circuit, in which this case was tried, rendered judgments on the pleadings and certified exceptions pendente lite thereto, presided upon the trial and signed the judgment, and that the regular judge of the Rome Circuit, while presiding in the absence of the judge of the Cherokee Circuit, approved the brief of the evidence, the amendment to the motion for new trial, overruled the motion, and certified as true the final bill of exceptions, which assigns error upon the exceptions pendente lite to the rulings by the other judge and upon the judgment overruling the motion for new trial — the motion to dismiss the bill of exceptions is without merit and is denied.
2. The petition to establish and probate a copy of a will, alleging that it had been lost or destroyed after the death of the testator, was not subject to the general and special demurrers. Nor was it permissible for the caveator to plead laches as a defense in the present proceeding at law.
3. The court erred in charging that the testimony of the propounder — who was the executor and a legatee under the will — admitting his delay of approximately three years in offering the will for probate after learning of its existence subsequently to the death of the testator, could be considered by the jury only on the question of his credibility. It was also relevant to and should have been considered on the issue of the existence of the will.
4. The court erred in charging that the propounder had the burden of proving the entire case by a preponderance of the evidence, except that *378 the signing of the will by the testator and the subscribing witnesses must be shown by clear proof. The law, Code, § 113-611, requires that the alleged copy must be clearly proved to be a true copy of the missing will. This requirement includes the content of the will as well as the signatures thereto.
5. Upon the trial of such a case the subscribing witnesses must be produced, as required in case of probate in solemn form, but the fate of the case does not depend exclusively upon the testimony of such subscribing witnesses for proof of the execution of the will. Such proof may be made by other legal evidence in the same manner as is permitted in case of probate in solemn form.
6. There being evidence that the will gave all the property of the testator to his wife for life, and at her death to his brother and nephew, share and share alike, and the copy introduced in evidence containing the identical provision, and both the evidence and the copy showing that the will was signed by the testator and attested by the same three witnesses, the alleged copy was not rendered inadmissible, upon the ground of material variance from the evidence, because one witness testified that he did not remember signing the will, and that he believed that the will gave all the property of the testator to the wife for life or during her widowhood.
The petition as amended in substance alleged the following: W. J. Gillespie, a resident of Gordon County, Georgia, died in 1941, testate. His sole surviving heir was his wife, Esther Gillespie. He left an estate which, by the will executed in 1935, was devised to his wife for life, and at her death to his brother, R. J. Gillespie, and his nephew, Robert Gillespie Jr., share and share alike. The will was executed in regular form, signed by W. J. Gillespie, and witnessed by J. H. Paschall, Otto Langford, and B. Y. Pulliam. A copy of the alleged will, marked exhibit "A," was attached to and made a part of the petition. The wife Esther died in 1944, and the defendant, Charles Fletcher, is the qualified administrator of her estate. The last person known to have had possession of the will after the death of the testator was the testator's wife, Esther, who made her possession known, after the death *379 of her husband, to E. T. Roberts, Mrs. R. J. Gillespie, and R. T. Hobgood. After the death of the testator, the will was either lost or destroyed, and the petitioner, who was named therein as executor, has been unable to find it.
The general demurrer challenged the sufficiency of the petition to state a cause of action. A motion was made to strike an amendment changing the initials of an alleged witness to the will, Pulliam, from "B. W." as they appeared in the petition and the copy of the will, to "B. Y.," asserting that by inadvertence the initial "W" had been used when it should have been "Y." The special demurrer challenged that part of the petition which alleged that the will had been either lost or destroyed since the death of the testator, asserting that the allegations should be positive that it was lost, or positive that it was destroyed, specify the person thought to have lost or destroyed it, and the time and place and circumstances.
There was evidence produced by the propounder to the effect that Henderson, the acting administrator of the estate of W. J. Gillespie had searched the papers and effects of the deceased and found no will. G. E. Whelchel talked to the deceased about a will on two occasions, first about two years before his death. He told the witness that he had a will under which his property would go to R. J. and Robert Gillespie Jr. It made provision to take care of his wife, but his brother and his nephew would get everything at her death. Again, about two weeks before his death he talked to the witness about the will.
A nephew of B. Y. Pulliam testified that Pulliam was in bad physical and mental condition at the time of the trial, that he could barely walk, had no mind, and could not talk, and that he could not remember anything that had happened ten or twelve years ago.
J. H. Paschall testified: He was a practicing attorney, and as such wrote a will for W. J. Gillespie, which he saw Gillespie sign and execute, and which Paschall signed as a witness, and to the best of his recollection Otto Langford and B. Y. Pulliam signed as witnesses also. The testator signed in the presence of the three witnesses, and each of the witnesses signed in his presence. The testator was looking after his own affairs, and was of disposing mind and memory, and the will was executed in the ordinary's *380 office. Regardless of who the witnesses were, he was sure that three witnesses signed the will. The will gave all the property to Esther, the wife of the testator, for life, and at her death the remainder to the testator's brother and nephew, R. J. and Robert Gillespie Jr. R. J. Gillespie was named as executor. The will was left with Paschall to be kept in his safe for a long time, but finally the testator came and got it. This witness was not positive who besides himself witnessed the will. He first thought George Whelchel did, but Whelchel told him that he did not think he witnessed it. Then Paschall, knowing that it was an important matter, studied a good deal about it, and decided that it was B. Y. Pulliam, instead of Whelchel, who witnessed the will.
O. C. Langford, whose first name is Otto, testified: Along about 1935 he was Clerk of the Superior Court of Gordon County, and he knew W. J. Gillespie and had known him ever since the witness could remember. They were friends. He knew B. Y. Pulliam but had not seen him within a year. The last time he saw him his mental condition was bad. He had very little mentality at all and could not carry on a conversation. The witness was present when W. J. Gillespie executed a will in the ordinary's office. B. Y. Pulliam was there. J. H. Paschall was there and he believed Judge Rankin was there. He could not say who else might have been there. He saw W. J. Gillespie sign the will, and he was sure that J. H. Paschall and B. Y. Pulliam signed the will as witnesses. He had no recollection of having signed it himself as a witness, and could not remember who was the third witness. He had signed a great many wills and deeds while he was clerk, and would have to see his signature before he would testify that he had witnessed the will. He had definite recollection that it was executed in his presence, but would not say that he had signed it as a witness. The testator was normal when he signed it. Paschall read the will out loud and he heard it. He remembered that it named as beneficiaries the testator's wife, Esther Gillespie, as a life tenant or during her widowhood, and gave the remainder at her death to R. J. and Robert Gillespie Jr. The wife was to have all of the property during her life, and the witness believed it had "widowhood" in there. The testator kept Robert Jr. when he was young and felt towards him like he was his child. The witness saw the will afterwards. The testator carried it in his pocket until the manuscript cover was about worn out. *381
1. L. Moore testified that the testator told him that he had it fixed so that R. J. and Robert Jr. would get the property; and this was a few weeks before the testator died.
E. P. Roberts testified: He knew the testator and his wife and R. J. and Robert Gillespie Jr., and had known them for a long time. The witness was in the real estate business, and shortly after the death of W. J. Gillespie he saw his wife Esther and inquired if she would sell the land left by her husband and she replied that she could not. About one month later he saw her again about the same matter, and she again replied that she could not sell it. She stated as the reason why she could not sell it that her husband had left a will and by its terms she could not sell the property.
Mrs. R. J. Gillespie, the wife of the propounder, testified: She knew the testator and his wife Esther. Following the death of the testator, she talked to his wife about a will of her husband. Esther said that she still had it, about one year before she died. During the summer after the testator died in February, his wife told the witness's husband in the presence of the witness that she had the will. Esther said, "Bob, I still have the will, and and Jim's property is mine as long as I live." She said that it left the remainder to Bob and Bob. She said in the last conversation that she was going to turn the will over to Robert Jr. when he got out of the service. The witness saw the will at the testator's home while he was sick about five or six weeks before his death. It was in his overcoat pocket. The cover on it was badly worn. This witness read the will. It was signed by W. J. Gillespie and witnessed by J. H. Paschall, B. Y. Pulliam, and Otto Langford.
R. T. Hobgood testified: After the death of W. J. Gillespie he was living within a mile of the home of Esther Gillespie, the wife of the testator. He went to see her for the purpose of renting some land from her. She came to the door with her husband's will in her hand. He saw the signature on it, and she told him it was a will. He also saw the signatures of the witnesses, and they were B. Y. Pulliam, Colonel J. H. Paschall, and Otto Langford. She referred the witness to Bob Gillespie, saying that her husband had willed his property to Bob and Robert Jr., and that the witness could rent it through them.
Robert Gillespie Jr. testified: His mother died when he was six weeks old, and that he lived with his uncle and aunt, W. J. and *382 Esther Gillespie, until he was seven or eight years old. When his father married again he went back to live with his father. He had stayed with his uncle and aunt since then for periods as long as three months. They had no children. His uncle showed him the will several times. It gave the property to his aunt Esther for life, and at her death the remainder to the witness and his father, and his father was named therein as his executor.
R. J. Gillespie testified: He was a brother of W. J. Gillespie and had seen the will several times. It was witnessed by J. H. Paschall, B. Y. Pulliam, and Otto Langford. The wife of the testator read the will to the witness after the death of her husband. It was the same will that the witness had seen before. Esther Gillespie was appointed, in 1942, as administratrix of her husband's estate. The witness employed Judge Ingram, who did nothing, and then he employed the present counsel.
The defense introduced evidence contradicting much of the evidence of the propounder, and including testimony that the testator had told the witnesses that he had had a will but tore it up. A copy of the will, identical with that attached to the petition, was put in evidence, besides letters of administration to Esther Gillespie on the estate of her husband. The verdict of the jury was in favor of the will.
(After stating the foregoing facts.) 1. This record shows that Judge Townsend, the regular judge of the circuit, ruled on the demurrers and the motion to strike, certified the exceptions pendente lite to such rulings, presided upon the trial, charged the jury and signed the judgment. Judge Porter of the Rome Circuit, while presiding for Judge Townsend in the Cherokee Circuit, approved the brief of evidence, the amendment to the motion for new trial, overruled the amended motion for new trial, and certified the present bill of exceptions. The defendant in error filed a motion in this court to dismiss the writ of error because the brief of the evidence and the amendment to the motion were approved by Judge Porter instead of Judge Townsend, and because the motion was overruled by Judge Porter and the bill of exceptions signed by him. The brief cites in support of the motion: *383
Code, § 70-103; Western Atlantic Railroad v. State ofGeorgia,
Code, § 6-805, which is a codification of an act of 1911, provides that, where the judge has passed on the merits of the motion for new trial, and no question as to the sufficiency of the approval of the grounds of such motion or of the brief of the evidence or of the jurisdiction of the judge to entertain the motion is raised, no question as to these matters shall be entertained by the reviewing court unless first raised and insisted on before the trial judge. To the same effect, seeRushing v. DeLoach,
While in Cutts v. Scandrett, supra, which was a quo warranto proceeding, it was held on authority of Western Atlantic Railroad v. State of Georgia, supra, that where two judges have presided at different times in the trial of different branches of the same case, there is no authority of law for this court to review the rulings of one under a bill of exceptions based upon the certificate of the other — it was further said in that opinion that a party complaining of errors made by the presiding judge on a preliminary *384 hearing was not without remedy to have such preliminary ruling reviewed, and that there was no reason why exceptions pendente lite could not be filed and duly certified as the law requires, by the judge whose decisions are excepted to, to have a final determination of the case when the same is brought to the Supreme Court for review under the general bill of exceptions, and the errors assigned in exceptions pendente lite considered and passed upon by the Supreme Court. It was pointed out that in the case there cited it had been held unnecessary for exceptions pendente lite to be filed, but that the court nowhere in that decision had implied that a party has no right to file such exceptions pendente lite and thus make them a part of the record; and that in the cited case but one judge had presided. We know of no reason why the rulings of Judge Townsend, to which he certified in the exceptions pendente lite, can not be reviewed in this bill of exceptions. It must be admitted that his certificate to the exceptions pendente lite properly and fully verified those exceptions. See Perry v. Tumlin, supra. Since the final judgment here excepted to is one rendered by Judge Porter, he and not Judge Townsend was the proper one to certify and approve the bill of exceptions seeking to review that judgment. The motion to dismiss is denied.
2. The petition alleged that the will was in existence after the death of the testator and had been either lost or destroyed. A copy was attached to and made a part of the petition. These allegations conform to the requirements of Code, § 113-611, and the petition was not subject to the general demurrer. The amendment, correcting one initial of the witness Pulliam, where it appeared both in the attached copy of the will and the petition, alleged that by mistake and inadvertence the wrong initial had originally been inserted, was not subject to the motion to strike, and the court did not err in allowing the amendment. Neither was the amended petition subject to the special demurrer, upon the ground that the allegation that the will had, since the death of the testator, been either lost or destroyed, was in the alternative, and that the propounder should be required to elect to stand upon one or the other and specify the circumstances under which the will was lost or destroyed. The decision in Wood v. Achey,
Nor is there merit in the exception to the ruling disallowing the caveator's amendment, which sought to plead laches as a bar. This is a proceeding at law, to which the equitable bar of laches does not apply. Code, § 3-712; Wood v. City Board of PlumbingExaminers,
3. Special ground 1 excepts to a portion of the charge in which the court — after reading to the jury sections 113-614 and 113-615 of the Code, wherein the executor named in a will is given the right to offer the same for probate, and required to offer the same as soon as practicable after the death of the testator, and qualify unless restrained by the will within twelve months after the same is admitted to record — then instructed the jury that, if they found from the evidence that the will was accessible to the executor named after the death of the testator, the jury could take the fact that he failed to offer the will for probate into consideration, to go to the credibility of the executor as a witness; and that, if the jury found that the executor testified that the will was in existence after the death of the testator alleged to have made the same, and it was accessible to him, the jury could take his failure to probate into consideration as going to his credibility, and for that purpose only. The criticism is that the charge illegally restricted the consideration of the evidence, and that, in disallowing the jury to consider the delay in filing the will for probate as a circumstance against the propounder's contentions, and especially the contention that the will was actually in existence after the death of the testator, harmful error was committed.
On an investigation of the issue of devisavit vel non, admissions of an executor before qualification shall not be admissible in evidence to probate the will, except where such admissions are in reference to the conduct or acts of the executor as to some matter relevant to the issue. Code, § 113-616. In Brown v. Kendrick,
Here, we have the alleged executor and legatee, in a proceeding to establish and probate a lost will, admitting while on the witness stand as a witness in his own behalf that he had knowledge of the existence of the alleged will within six weeks after the death of the testator and made no attempt to probate the same for approximately three years, during which time he knew that the life tenant under the will, the wife and sole heir of the alleged testator, had applied for and obtained the appointment of an administrator of the estate. While it is true that these circumstance go to the credibility of the executor as a witness, they are also evidence in the case relative to the issue as to whether or not the alleged will was in existence after the death of the testator. The evidence being relevant, it was error for the court, in the charge complained of, to restrict the jury's consideration thereof to the sole question of the credibility of the executor as a witness.
4. Special ground 2 complains of a charge, where the court read the Code, § 113-611, to the jury, and then charged that the burden was upon the propounder to prove his case by a preponderance of the evidence, and this rule applied to all of the case with the exception of the execution and attestation of the will itself; that in this case the actual signing and attestation of the will, that is, the witnessing of the will by the three witnesses must be clearly proved, which is a character of proof different from a preponderance of the evidence; and that it must be clearly proved by the subscribing witnesses and other evidence. This charge is excepted to upon two grounds: (1) That it allowed proof of the content of the will by a mere preponderance of the evidence, whereas under the Code, § 113-611, this must be clearly proved; and (2) that it allowed proof of the execution of the will by "other evidence," whereas under the Code section just cited it must be made by the subscribing witnesses only.
Precisely what must be clearly proved is stated in unambiguous language in the Code, § 113-611. It is there provided that, if the will has been destroyed before the death of the testator without his knowledge or lost or destroyed subsequently to his death, "a copy of the same, clearly proved to be such by the subscribing witnesses and other evidence, may be admitted to probate and record in lieu *387 of the original." The quoted language is a plain mandate of the law that the "copy" must be clearly proved. The copy in its entirety embraces, not only the signatures of the testator and the witnesses, but the content of the will as well. There is nothing in the law that justifies a division of the copy into two parts, one of which contains the signatures and the other the content. The clear-proof rule, therefore, applies to everything which composes the copy of the will. The charge excepted to expressly restricts the clear-proof rule to the signatures of the testator and the witnesses, thereby rendering it inapplicable to the proof of the content. The charge was subject to the criticism made, and the court erred in charging that the rule applied only to the signatures, and that the preponderance rule applied on all other issues. It would seem that an instruction quoting the exact language of the Code would be adequate and full enough in charging as to the quantum of proof in such a case. The other attack upon this charge is dealt with in division 5 of this opinion, and held to be without merit.
5. Special grounds 3 to 9, inclusive, except to the introduction of evidence, over objection that the execution of the will had not been proved by the witnesses, and that the evidence was an attempt to prove the execution by evidence other than the testimony of the subscribing witnesses. The general grounds of the motion for new trial challenge the sufficiency of the evidence, and it is contended that these grounds should be sustained because the execution of the will was not proved by the available subscribing witnesses. All of the grounds thus relating to the same legal question will be dealt with in this division of the opinion. The decisive question, therefore, is whether or not evidence other than the testimony of the subscribing witnesses is admissible for the purpose of proving the execution of the will. An affirmative answer will be fatal to all of the grounds. As contended by the caveator, it was held by this court inKitchens v. Kitchens,
The provision of Code § 113-611, that the copy of the missing will be "clearly proved to be such by the subscribing witnesses and other evidence," no more limits proof of the execution of a will to the testimony of the subscribing witnesses than does the above-cited section relating to probate in solemn form. Indeed, it expressly authorizes the introduction of "other evidence" for the same purpose for which it authorizes the testimony of "subscribing witnesses." When we look to the applicable Code section, it is obvious that the execution of the will may be proved by other evidence when the available witnesses have been produced. And when we look to the decisions upon which the caveator relies for support of a contrary contention, it is found that they too assert *389 that proof of the execution of the will must be made as in case of probate in solemn form. We have shown above that in case of probate in solemn form evidence other than the testimony of the subscribing witnesses is admissible for the purpose of proving the execution of the will. On this question there appears to have been much doubt, but we think that the foregoing removes it; and we now rule that proof of the execution of a will in case of probate in solemn form and proof of the execution of a will in a case to establish and probate a copy where the will is missing may be made in precisely the same manner and by the same character of evidence; and in both evidence other than the testimony of the subscribing witnesses, after the available witnesses have been produced at the hearing, is admissible for the purpose of proving the execution of the will, and in each this may be done despite the testimony of the witnesses against the will.
Nothing to the contrary of what we have just ruled was held inSmith v. Smith,
6. The caveator excepts to the ruling admitting the copy of the will in evidence, over the objections that its execution had not been proved, and that there was a material variance between it and the evidence. The ruling in the preceding division of this opinion controls adversely to the caveator the first ground of objection. It is contended in the second ground of objection that the material difference between the evidence and the copy of the will is that the witness Langford testified that the widow was to receive thereunder all the estate for life or during her widowhood, whereas the copy shows that she was to receive the property for life. The testimony of Paschall and the other evidence shows that the widow was to receive the property for life, and, hence, there is no variance between this evidence and the alleged copy. *391
In Woodruff v. Woodruff,
Judgment reversed. All the Justices concur.
