138 Ga. 752 | Ga. | 1912
1. Upon the trial of an issue made upon an application for probate of a copy of an alleged lost or destroyed will, the court did not err in instructing the jury that “It is not necessary that all the subscribing witnesses shall testify to the contents of the paper, but this fact may be established by any credible testimony, whether it be the evidence of a single subscribing witness or of any other witness.” Civil Code, § 3863; Kitchens v. Kitchens, 39 Ga. 168 (2), 172 (99 Am. D. 453); Moseley v. Carr, 70 Ga. 333. See also Burge v. Hamilton, 72 Ga. 624; Gillis v. Gillis, 96 Ga. 1, 17 (23 S. E. 107, 30 L. R. A. 143, 51 Am. St. R. 21).
2. On the trial of such an issue the court instructed the jury that “the contents of the will may be proved, and the presumption of the revocation by the testator which is raised by law may be rebutted by such evidence as clearly satisfies the conscience of the jury, and any evidence which is deemed by the jury credible is sufficient to establish what were the contents of the lost will.” This instruction was inaccurate in part. The statement that certain evidence was “sufficient” was likely to be understood as dealing with the weight of evidence or quantum of proof on which the jury might base a finding.
3. Upon the trial of such an issue, after instructing the jury in accordance with the rule announced in Scott v. Maddox, 113 Ga. 795 (39 S. E. 500, 84 Am. St. R. 263), to the effect that when a will can not be found after the death of the testator there is a presumption that it was destroyed or revoked by him, and that the burden of overcoming such presumption is upon him who seeks to establish a lost or destroyed will, the court charged as follows: “This rule applies and this presumption exists only when it appears that the will remained in the possession of the party making it. If it appears from the evidence that the testator executed his will and left the same in the possession of a third party who delivered it to another third party, and the evidence does not show that it reached the possession of the testator during his lifetime, there would be no presumption that the testator destroyed it with the intention to revoke it, arising from the mere fact that the paper could not be found after the testator’s death.” The Civil Code, § 3863, declares: “If a will be lost or destroyed subsequently to the death or without the consent of the testator, 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 of the original; but in every such, case the presumption is of revocation by the testator, and that presumption must be rebutted by proof.” This code section is awkwardly expressed, but, properly construed, the words “in every such case” refer to every case wherein it is sought to have admitted to probate and record a copy of a lost or destroyed will in lieu of an original; and therefore, when it is sought to prove and establish a will not to be found at the death of the testator, the propounder is confronted with the presumption that the will was revoked by the testator, and that presumption must be rebutted by proof. This presumption may be rebutted by proof that the will was lost or destroyed subsequently to the death of the testator, or prior to his death without his
(a) The court also erred, as complained of in the eighth ground of the amended motion for new trial, in making a concrete application of the charge which we have held to be erroneous to given phases of the case.
4. In view of the evidence tending to prove the execution of the contents and loss of the will, and that which tended to prove the correctness of the alleged copy which it was sought to establish, there was no error in admitting such copy in evidence.
Judgment reversed.