168 Ga. 442 | Ga. | 1929
The exception is to a judgment refusing a new trial. The proceeding was to probate a will, and caveat was filed. The verdict was for a second time for Irwin, caveator. See Peek v. Irwin, 164 Ga. 450, where a detailed statement of the case may be found.
1. The evidence supports the verdict.
2. Movants for new trial complain of the following charge to the jury: “When a will can not be found after the death of the testator, there is a strong presumption that it was destroyed or revoked by the testator himself, and this presumption stands in the place of positive proof.” This charge is an exact quotation of the second headnote in Scott v. Maddox, 113 Ga. 795 (39 S. E. 500, 84 Am. St. R. 263)) which is elaborated in the opinion. It is not always proper to quote in a charge the language of a Supreme Court decision; but in this case the headnote states a correct abstract principle of law, which, in view of the evidence and the rendition of two consecutive verdicts for the caveator, will not cause a reversal, although the language is somewhat stronger than that in the Civil Code (1910), § 3863. Kitchens v. Kitchens, 39 Ga. 168 (99 Am. D. 453); Harris v. Camp, 138 Ga. 752 (76 S. E. 40); Wood v. Achey, 147 Ga. 571 (94 S. E. 1021).
3. Movants complain of the following charge: ‘“Did Mrs. Irwin make the will as set out in the propounded suit? If you find that she did not make the will as set up in the suit of the
Judgment affirmed.