185 Ga. 12 | Ga. | 1937
Counsel for the plaintiffs in error in their brief argue and insist only on two propositions: (1) That the alteration made in the alleged will was so material as to create a presumption of an intention on the part of the testatrix to revoke the same entirely; and that, no evidence having been introduced by the propounders to show a contrary intention, this presumption of intention was not rebutted. (2) That since the alteration and consequent revocation appeared on the face of the instrument, the court erred in allowing it in evidence. After discussing these questions the-brief concludes as follows: “We next consider the ground of the caveat, that the will was not signed in the presence of the testator, and the testator did not sign in the presence of the attesting witnesses nor acknowledge the same to them. Due to the illness of one of counsel for plaintiffs in error, and the engagement of the other in the trial of a case in the United States district court for the last four weeks, we respectfully request leave to file a supplemental brief covering other questions of law not discussed.” No supplemental brief has been filed; so assignments of error based on the “other questions of law not discussed” are treated as abandoned.
The Code, § 113-404, declares: “An express revocation may be effected by any destruction or obliteration of the original will Or a duplicate, done by the testator or by his direction with an intention to revoke; such intention will be presumed from the obliteration or canceling of a material portion of the will; but if the part canceled is immaterial, such as the seal, no such presumption shall arise.” It was ruled, in McIntyre v. McIntyre, 120 Ga. 67 (47 S. E. 501, 102 Am. St. R. 71, 1 Ann. Cas. 606): “Where a paper found among a decedent’s papers is offered for probate as a will, and appears to have been canceled or obliterated in a material part, a presumption arises that the cancellations or obliterations were made by the deceased and that he intended them to operate as a revocation.” In the opinion it was said: “The paper offered for probate had been duly and legally executed as a will. Some time after its execution the testator drew pencil lines through certain portions of the will, and also caused slips of blank paper to be pasted over certain clauses in the will, through which
In Hartz v. Sobel, 136 Ga. 565 (71 S. E. 995, 38 L. R. A. (N. S.) 797, Ann. Cas. 1912B, 165), it was ruled: “1. A testatrix, after the execution of her will, cut therefrom two items giving bequests of money, and cut from another item, in which a
In the opinion delivered by Mr. Justice Lumpkin it was said: “The testatrix, after executing a will, cut from it with some sharp instrument two items and also certain words. When the will was propounded for probate, there were vacant places where these words had been, but the will presented was connected and expressed a complete testamentary scheme without the omitted words and items. By witnesses it was shown that a carbon copy of the will, except as to the signature and attestation, had been preserved. From this it appeared that the two items which had been cut out
“It will be seen that no express reference was made to revocation pro tanto, except in the provision that an ‘implied revocation [by a subsequent will] extends only so far as the inconsistency exists,' and that any portion of the first will, which can stand consistently with the testamentary scheme and bequests in the last, shall remain unrevoked. On the subject of revocation pro tanto by destruction or obliteration the Code is silent. It has been more than once said that the Code ‘subsequently’ adopted the English statute of frauds. But it is evident that there are some changes which must have been intentionally made. In the first place the reference to revocation of a clause or devise by destruction or obliteration, contained in the English statute, was left out. In the English statute, prior to the Victorian statute of wills, the acts of revocation, other than by writing, were mentioned as 'by burning, canceling, tearing, or obliterating.' The language of the Code is b any destruction or obliteration of the original will.' These words may be sufficiently broad, in connection with their context, to cover the other terms employed in the English statute, but they do not follow it literally. Again, under the English statute, the erasing or canceling of one or more clauses, although they might be substantial or material in their character, did not generally affect the rest of the will, unless it left the remainder unintelligible, and thus necessarily operated as a revocation of the whole. Tinder the Code it is provided that an intention to revoke the will will be presumed from the obliteration or cancellation of a mate
“The question of increasing or diminishing an estate by means of an erasure or obliteration seems not to have been discussed in the earlier English cases. In the Larkins case, supra [3 Bos. & Pul. 14], which was decided in 1802, Booke, J., said: ‘It is rather extraordinary that this point should now come to be decided for the first time.’ When the codifiers dealt with the subject of revocation of wills, not only having before them the English statute of frauds, but doubtless investigating also the decisions which had been made on the subject, they formulated the sections cited, which were generally similar to the English statute of frauds, 'but did not follow its exact terms. While they were codifiers and not legislators, four times the Code, containing these same provisions, has been adopted. We think that the section touching the revocation of a will by obliteration, canceling, or the like should be construed in harmony with the construction of similar statutes by other courts in reference to the subject now under consideration. And, under a proper construction thereof as embodied in section 3919 of the Code of 1910, the statement that ‘an express revocation may be effected by any destruction or obliteration of the original will, or a duplicate, done by the testator, or by his direction, with an intention to revoke,’ dealt with an express revocation of the entire will, and not a clause or part thereof, by destruction or obliteration. The obliteration or canceling by the testator of a material portion of the will raises a presumption of an intention to revoke the whole.
“If, then, our statute does not provide for the revocation of a clause or part of a will by destruction or obliteration of it, the next question which arises is what shall be the effect of such an obliteration, if actually made, with intent not to revoke the entire will but only a particular clause or part thereof. The presiding judge expressed his view on this subject in the following part of a charge or opinion which he delivered before directing a verdict. ‘The in
“In Burge v. Hamilton, 72 Ga. 568, a will, as offered for probate, was written on ten pages. Pages 1, 2, 3, 4, 5, 7, and 9 were clearly numbered, and without alteration in the numbering. On page six the numbering appeared to have been changed from 5 to 6. On page 8 the numbering appeared to have been altered from 7 to 8. On the last page the numbering at the top of the page had been altered from 11 to 10. At the bottom of this page was the number 11. The entire will was in the handwriting of the testator, and his signature was on each of the pages. Each page contained a separate paragraph of the will. A codicil was executed, in which it was stated that the will was approved except as altered by the codicil. The latter was written on pages numbered 12, 13, and 14, and was attached to the paper offered for probate. Parol evidence was offered to show that the will was in the same condition when the codicil was executed and attached to it as when it was offered for probate, and that the will was executed as it was offered. The caveators attacked it, among other reasons, because it showed on its face that a part of it was missing. The main question discussed was the admissibility of the evidence. But in the course of his opinion, after citing numerous authorities, Chief Justice Jackson said: 'These references to able text-books and cases decided show that by the English law parol evidence is admissible, first, to explain certain ambiguities; . . and sixthly, that a will, identified in part, will not be refused probate -as to that part because of the uncertainty of other probable parts, the contents of which lost or missing parts are unknown. And these adjudications are not affected by or based upon any statute of Vic
We think that the alteration made in the will in this case, including the notation written in pen by the testatrix, “I do not give High Museum anything,” shows clearly that the intention of the testatrix was only to revoke the second item of the will, which devised described articles of personalty to the High Museum of Art of Atlanta. Under the ruling in the McIntyre case, the alteration is presumed to have been made by the testatrix, since the paper was found in a safety-deposit box in a bank with her other effects after her death. But under the decisions in the McIntyre and Hartz cases, as to what constitutes such a material alteration as to create a presumption of an intention to revoke the entire will, and since “The materiality of an alteration is a question of law” (Code, § 20-803), we think the court properly determined that the alteration in this will was intended only to effect a revocation pro tanto, which is not allowed in Georgia by obliteration or cancellation. This being true, and no evidence being introduced tending to' show the contrary, the general rule that “the burden is on a person attacking a paper offered for probate as a will to sustain
Judgment affirmed.