115 Ga. 357 | Ga. | 1902
A paper purporting to be the last will of J. W. Howard was propounded for probate by the nominated executor, and certain persons, describing themselves as the heirs at law of Howard, filed their caveat objecting to the probate of the paper as a will, upon the ground that after the paper was executed Howard revoked the same, and that therefore it was not his last will. The case was carried by appeal to the superior court, and at the trial in that court the judge directed a verdict in favor of the propounder. The case is here upon a bill of exceptions filed by the caveators, complaining that the court erred in refusing to grant them a new trial. It appears from the evidence that the paper propounded as .a will was executed with all the formalities required by law for the execution of wills. When offered in evidence it was objected to on the ground that it appeared from the paper itself that as a will it had heen revoked by the testator, this objection being based on the following state of facts: The will was written on three of the pages of a double sheet of legal-cap paper, and signed on the third page. The attesting clause signed by the witnesses was near the close of the last page, the name of the last witness being on the
We have called attention to the cases from Yermont, Maryland, and Pennsylvania, for the reason that the two former were relied on by counsel for the plaintiff in error in the present case, and the latter is sometimes cited as authority for the proposition that there may be a cancellation of a will by an entry to that effect upon the paper, although such entry did not have the effect of obliterating
Error is assigned upon the refusal of the judge to allow a witness to testify that, a few days before the death of the testator, he had arranged with him and two other witnesses to meet the testa^ tor at an appointed time and place for the purpose of witnessing the execution of a will; and in' refusing to admit in evidence a paper purporting to be a will of J. W. Howard, which was unsigned. There was no error in either of the rulings complained of. The only purpose in introducing this evidence was to show an intention on the part of Howard to revoke the will which was propounded for probate. There was no question as to the fact that Howard had this intention. It was manifest from the entry upon the paper, and the controlling question in the' present investigation was whether this intention had been carried into effect.
The judge did not err in any of the rulings complained of, nor in directing a verdict in favor of the propounder.
Judgment affirmed.