*1 аnother, also from where the nature of the transaction manifest it was the intention of the parties that the person title should legal interest;” no beneficial taking whatever- trust, there no evidence as to an being express the effect confine charge again inquiry sole jury issue whether or not an trust implied was shown evidence. Boss, Floyd See
The evidence was sufficient to support the verdict in favor and the trial court did not err plaintiffs, overruling in. the defendant’s motion for new trial as amended. concur, J., All Justices
Judgment except Wyatt, affirmed. toolc no in the consideration or part who decision this case. SALIBA; et et
SALIBA al. vice versa. *3 September 15844, Rehearing 9, Nos. 15845. 1947. denied 1947. October Wilkinson, A. L. Jones, IT. W. B. Ferguson, and B. for plain- tiffs error.
Leonard Burt, Farkas Waller H. and contra. Justice. This is the second appearance of the instant
Bell, Saliba, case. Saliba See 2d, 511). On 20, 1946, March George II, infant, Mike Saliba acting and another as through friend, next filed a petition the Court of of Terrell Ordinary County, seeking to what probate was alleged be a true of the last will and Saliba, testament of George M. an uncle of the plaintiff, who died- resident of Terrell County on about March or to the
According allegations of the petition,, plaintiff’s father, Saliba, John Rogers legatee named as a in the but pre- alleged deceased the testator. This accounts the interest of the seeking alleged of the will plaintiff probated. Code, 113-812. M. children, Saliba
George widow, died without leaving Mrs. Saliba, as his sole heir at law. She filed an Adele answer to the as petition in issue the allegations or putting caveat, She the alleged copy. and the correctness of execution of will court, superior a demurrer. The case was appealed also filed as amended petition demurrers to special where general returned in favor of the overruled, plaintiff. and a verdict was were demurrer, general judgment overruling This court affirmed the ground special one judge overruling but held that the erred an amendment to the petition being which attacked demurrer ruling, though from the latter dissenting one Justice duplicitous, Saliba, Saliba in the or result. judgment concurring specially 577 (supra). court, struck the the plaintiff On return of the case to the trial amended the held amendment had been duplicitous, which Demurrers his in three counts. so as to case original plead petition overruled all counts. The court grounds were filed to each of these counts, sustained the first and second but of demurrer before again prevailed count. The plaintiff demurrer to the third favor. The defend- verdict returned his being a jurjr, general overruled, she amended was motion for a new trial as ant’s cross-bill of exceptions complained The excepted. plaintiff count of his the demurrer to the third judgment sustaining petition striking count. amended, now treatеd thus to be original petition destroyed will was before the testator’s that the
as coimt consent; the will also knowledge death without persons, W. L. and two other who Ferguson witnessed by Hill, and K. A. or Miss Annie Timmerman and J. King either executed and Marlin, but that said will was witnessed K.K. law. The defendant demurred to this persons required by three it sets forth no sufficient facts upon count *4 the because said (a) petition a probate alleged authorize manner, when, or in what allege fails to how as amended was destroyed; will of M. Saliba the original whom three particular fails to show what petition per- because said (b) said will as witnesses. sons signed observed, a demurrer. this was the general Applying
As will err as the law of the court not decision did case, former it. overruling amendment, count, was added by
The all of which second count, as the first allegations the same substantially contained 795 it except alleged that original will was lost or destroyed the death of the testаtor. This count was attacked by gen- after eral demurrer the same upon grounds count, as the first and we far make same so as ruling these grounds demurrer are (cid:127) concerned. But in count, 5 of second it paragraph was a alleged that of said will is attached hereto copy A, marked exhibit although ° attached, no exhibit actually and the defendant demurred 5 on this specially paragraph ground. a
A demurrer general petition is one which attacks the suffi ciency whole, a petition that it contending does state of action relief. A a cause for which demurrer thus assails demurrer, a its is a petition general entirety it notwithstanding allege specific why reasons as a whole may petition should be Adams, dismissed. Sutton 180 55 v. 48 S. (178 Ga. E. (1), 365). however, case, In instant the general demurrer was limited to reasons,” and none of them assailed the a “specific petition as here (referring whole second count) upon ground attached; will was and we will deal with the made just demurrant, demurrers they now plaintiff far in error. so Accordingly, failure to attach the exhibit concerned, ease, we for purposes this treat the second count as being good against general demurrer, without so deciding, will now deal the special and we demurrer- attacking para 5, such see, failure to attach exhibit. But graph this con 639; 1 nection, Page ed.), Wills 68 (2d C. J. 1062, § 736; 28 E. C. L. § § held court
It has been
that each count
a
petition
this
must
action,
cause of
complete
contain
is not permissible
make
of one count
of another count
paragraph
part
by mere
Co.,
to the same.
Fortner
Cooper
Brewing
reference
v.
Ga.
Emerson,
S. E.
Train v.
Nor, as we see trial, to deter necessary is it during committed the certain errors of demur in this overruling special mine the error whether harmless, under the facts 5 be treated rer to should paragraph Atlanta, 641 Bank 182 Ga. First National Ellis appearing. of Neuman, 183 398 Ga. (3) Harris Norwood, 38 Ga. App. E. Co. v. Deposit S. & 689); Fidelity (1c) (144 demurrer second of some additional grounds
There were in the statement of facts count, referred to they were although error, they in for the plaintiff brief of counsel part the containing argu- mentioned in part even upon insisted ment, as abandoned. and are therefore considered 5, amended, in paragraph
Count of the petition original original petition, as did the alternatively, or con knowledge death without his before testator’s destroyed death; but it contained to his sent, subsequently or was destroyed petition, which did not appear original the further allegation, information cannot whether [petitioner] say “for want testator’s before or after the the will occurred disappearance to this count both generally defendant demurred death.” The is duplic demurrer insisting by special paragraph specially; alterna in that it two itous, ambiguous, alleges contradictory, without recovery, alleging theories of tive and inconsistent which of true, and without said alleging is of said theories either for recovery. relies on plaintiff theories the here, is, cross-bill presented The new only question could allegations whether such alternative prop- is of exceptions, be the further averment as to “want made when followed erly 91, it stated: In 49 J. “Where the C. information.” § facts, sets of as to which of two under knowledge has pleader liable, exists, would be equally the opposite party either of which alternative.” To same them allege may properly intimation this 42. See also the 41 Am. Jur. effect, see Saliba, 201 case. Saliba v. former opinion in the point However, of the new averment to want because (supra). as to this point. case does not information, apply law of the third count. demurrer to the sustaining court erred considered if would not be cross-bill of exceptions While affirmed, as we yet, new trial be should refusing judgment indicated, a new trial ordered, must be already thus necessitating cross-bill, a decision and we upon therefore here, determine it with the other along questions relating pleadings; although, since was stricken and the the third count case was tried only upon counts not, 1 and we will in this opinion, concerned further with *6 count
We come now to the motion for a new trial. The evidence show sufficient to that George Saliba did M. execute a inwill manner and form prescribed lawby on some day February, 1943, and that the copy attached original petition was a true will, and correct copy except that the original will may shown the of the month day executed, on which was whereas such date was not shown and copy; also except that it was not witnessed five by as indicated persons by attached but copy, named, three of the five only persons and there was some ques tion in the evidence' as to whether these three W. were L. Ferguson, Hill, and R. King J.'E. or W. L. Ferguson, A. Miss Annie Timmerman and R. R. Marlin. L. Dawson,
W. Ferguson, attorney testified for Georgia, he That a will for plaintiff: drew M. George Saliba, and that attached to the “a copy petition is correct my Saliba, has no signature George M. and no signature witness on it.” The any signed witness a letter dated April Farkas, addressed to Leonard Albany, which letter Georgia, evidence, was introduced in and inwas as follows: part recol- “My lection will was signed witnessed either in my office, bank, further, or in the recollection my is that Mr. J. E. Hill, R. A. and I were the witnesses. I King, Mr. may be error- this, might about bеcause it have been witnessed in my office by Marlin, Timmerman, Mr. and myself. However, Miss I am certain executed, that it witnessed and turned signed, over to Mr. The witness Saliba.” also testified: “To best my recollection, it witnessed, executed and . . was properly signed by the testator . . I witnessed three witnesses. delivered the will to Saliba, testator, took it . he off with him. George . That Iwill ever Saliba.” only prepared George Also, is the that the whole,” is correct “as the witness although could letter will.” positively who witnessed the “swear 1, error was assigned because special judge with- L. W. following testimony held from witness jury which was offered the movant: Ferguson, Q. “I know of the witness when is the first he want to time M. had conversation with Saliba George subsequent ?” of his will making latter the summer of
A. “The first time was in the part 1945.”
Q. conversation?” “What was that that, I Mr. A. “The conversation was this: stated to Saliba if did I had for him February, he not wish the will that written it, stand, he had better or do away destroy occasion, ‘I it.’ I had and he on the first will attend to replied him almost same conversation with later two identically the said, occasions, ‘I have three and on those occasions more ” attended to it.’ Q. of a will with question “The last time that discussed the you M. Saliba was when?” *7 at home on Lee evening A. “The last time was on Friday Dawson, 8th, 1946.” Street about Georgia, February' Q. “In did Mr. Saliba say you?” what to conversation, A. that I repeated “We had almost the same conversation have will, replied in reference to this same to me previously I have will, he had will that testified destroyed referring another I that he should make about. stated to M. Saliba George will, said, I until I No, complete winding up and he will wait Saliba,’ completed of John which would be Rogers of the estate said, March, you I I do ‘George, first Tuesday replied, make it will, until a can now you not have to wait then to make I said, No, everything I will wait until get if see fit.’ He you ” I will.’ wound and then will make my up that said was in this evidence was material It case, and its involvеd in the exclusion was hurtful the issues a to the defendant because disclosed reason for prejudicial Saliba, M. a testator, without 'in dying and was that he had revoked the will a presumption copy support was being probate. which offered the court erred in excluding testimony. We think that wherein it is to have admitted to sought case every probate in lieu of destroyed lost or original, and record
799
is confronted with
propounder
the presumption that
the will
113-611;
revoked by
the testator.
Wood v.
147
Code,
Achey,
E.
v. Maddox,
Ga. 571
Scott
1021);
S.
While
such
in favor of admitting
to be
authority appears
the weight
Battlе,
458;
34
See,
Cobb v.
Ga.
evidence.
in this connection,
Hamilton,
625; Thornton’s Monograph
v.
72
568
Burge
(3),
152,
58, 60, 101;
on Wills
Wills,
1 Jarman
on the Law of Lost
§§
277;
383,
E.
28
C. L.
the Law of Wills
Underhill on
(e);
§
§
2d,
Auritt’s
387;
Holt,
5);
253
718
S. W.
Ky.
Rowland
(70
v.
Dill, 145
Estate,
2d,
Churchill v.
175
303
Pac.
713);
(27
Wash.
542
139
2d,
Thompson,
Kan. 306
v.
Ark.
337); Bradway
Pac.
(65
14
W.
Dannenbauer,
(35
v.
120 Tex.
S.
S. W.
(214
27); Compton
Counsel
evidence:
court
excluding
the trial
ruling
sustaining
98 Ga.
Redd,
Grogan,
Jones v.
43 Ga.
(6);
v.
Hargroves
Allison,
In Jones v.
was filed
Grogan,
a caveat on
had been
attacked
probate
a named
It
influence of
was held
person.
undue
procured
which
to have been
appeared
of the testator
freely
declarations
tended
show
made, and which
paper
voluntarily
pro
had been
accordance with
prepared
wishes,
his will
pounded
it,
evidence,
satisfied
admissible
that he was
but
for the
contrary,
purpose
declarations
invalidating
admissible. Compare
were not
as his
Mallery
paper
where a
142),
similar
In the court first in a dictum Kimsey supra, undertook had been ruled in Patterson to state what and Cobb v. Hickey v. Battle, but in so doing unduly restricted supra, those decisions res gestae. of principle ruling actually made was that of a testator that his will had been and declarations lost or stolen his these that it was no declarations longer accompanying not act which could be construed as an act of revocation or revocation, are inadmissible. That was a proceeding attempted an and of original being there rev probate presumption revocation, which could be ocation and no act construed as Redd, in is made that case similar to that in ruling Hargroves and does not conflict in we now hold. any way what supra, insisted for But is further the defendant error that it because it was in that evidence excluded properly opinionative, it undertook to state the of the words used testator meaning by the whole, evidence as a Considering proffered the conversation. it to such criticism. subject was not witness, that the is contended
Lastly, being attorney, client, as to conversations with testa- testify his disqualified contention, tor. There is no merit in this as the not attorney'was client against for or of his clients testifying the interest Yarborough Yarborough, 2d, 329). estate. himself, instant case The record shows that the plaintiff objection, without introduced evidence of statements many by the act, for the accompanying any purpose rebutting testator revocation, and leaned presumption heavily upon type testator, evidence. The if rule that declarations any, either to such be shown confirm or rebut In may presumption. words, the rule works both indifferently ways. other assigned error on
Special ground ruling admitting $25,000 evidence of the return of a.copy appraisers setting aside to the widow and minor child of John year’s support Sogers Saliba, judgment of the court of ordinary and admit return to record as of the court. judgment such ting special 4, error was on a assigned ruling evidence a admitting grodnd Mrs, $25,000 6, 1945, dated Decembеr and signed receipt Saliba, full "in and and complete payment John settlement. of all claims for a future out of said present year’s support estate^ title, all complete and in full and payment every right, interest which the said Mike II undersigned Saliba has, Saliba, deceased,” in and to the of the said John E. estate *10 a waiver of dower the same date. In signed bearing special ground 5, complained the movant court in in evi- erred' admitting dence a certified proceedings before the court will of John ordinary probating Saliba, E. including such been having probated January In each of these it grounds, appears that the evidence therein objection referred to was admitted over of the movant was that it case, any not relevant or material to issue in the and was prejudicial. If the evidence shown in alone, stood special ground it had irrelevant, have been when might but considered with the evidence set 4 and special grounds forth other evidence in the record, we think that it was relevant and admissible; there nor was error in the evidence as shown in admitting special grounds 4 and 5. evidence
There was effect that George M. Saliba and John wills, had mutual agreed so, Saliba to make Eogers had done each named as a in the legatee will of the other. being It appears the evidence although from the present plaintiff, child of that — Saliba, John was born after his father’s Eogers will was executed, event, and no was contemplation made in of such provision so that latter (Code, 113-408; the will of the was revoked thereby Saliba Saliba, 2d, 511) nevertheless, George — Saliba, M. principal legatee, proceeded to have the will pro- bated a consent and thereafter judgment, paid widow, Saliba, $25,000 Mrs. Sheffield Mary year’s support for herself child, in of a and minor settlement suit which she had brought to such will. The judgment probating set aside waiver of dower the same settlement transaction. In part was reference to this that, Mrs. Sheffield testified Mary Saliba when payment, George M. $25,000 her, her he told that it was paid Saliba hers and she to, it if she wanted that he was spend going could to see that the lived, care of as as he at long taken his death baby it would So, his all care of will. taken evidence set forth in 4,2, and 5 admissible for the grounds purpose special of show- Saliba made a will M. had George would ing inure to the
80S benefit of the minor and also as child, showing circumstances tend- to illustrate the ing or probability of his later revok- improbability In words, such will. other ing if he obtained probate of brother’s will and was thereafter $25,000 willing pay as a year’s in order to it support keep probated, seems that these facts would have some on whether bearing he desired and intended carry out the plan agreement which the evidence tended to show he had made with his brother as to the execution of mutual wills. 42, and 5 Accordingly, special grounds do not show error. Ground raised similar and is question, controlled ruling. special ground the movant contended that the court erred evidence a admitting warranty deed Mrs. executed by Saliba, Adele as the wife sole heir at law of G. M. Saliba, and to Mrs. conveying Camilla Saliba Shibley (a sister trustee for testator), George Mike Saliba II (the plaintiff) four named children of Shibley, Mrs. certain real estate *11 Dawson, Georgia. same also ground a assigned error upon another deed Mrs. ruling admitting by Adele George Saliba to Camilla Saliba Shibley both individually, Mrs. deeds being dated 14, March 1946. This of the motion that both alleged two aforesaid deeds recite that Mrs. grantor, Adele Saliba, is the George widow and sole surviving heir at law of Saliba, intestate, who died G. a without M. resident of Ter rell County, Georgia, said deeds are made for the purpose all the conveying title and interest right, of either Saliba, G. M. Saliba, Adele or Mrs. in and to George said described property.” objected The movant introduction said deeds at the time in evidence, they offered the ground that not they were relevant or material to the issues involved in case, and were harmful, and prejudicial, not confusing, evidence on legal of whether this is M. George issue Saliba’s will or not. 7, the special ground defendant complained that the court in
erred of J. admitting testimony Fletcher, H. as ordinary, Q. follows: “Didn’t Mrs. Saliba tell George you that when she with Bochester her husband told her that he had a will ?” A. “That is my understanding, he told her that he had a will. That is what she said.” This testimony objected Mrs. being hearsay secondary, Saliba being at the time in the court and available as a witness. two Mrs. 7) together. these grounds
We will consider M. Saliba heir at law’of would and sole as the widow Saliba estate, if there was no will. Whether inherited his entire an. showing Fletcher was admissible testimony Mr. admissible interest, it was relevant and her her against admissiоn evidence, relating considered with other to be as a circumstance in the record to There is evidence and conduct. to motive 5, 1946, March while a patient died about Mr. effect that Saliba ,or Bochester, Minnesota. If Mrs. Saliba hospital at a clinic from her husband information testified, receive did, as the witness will, this fact would be relevant admissible he had made a deeds in question the two executing motive her illustrating after death. days nine or ten only motion thus grounds set forth these two The evidence will, together mind unfavorable to the to show a state of tended in conveying with such haste Why defeat it. act purpose law, her at if she had been told especially as heir property a will? The presented had made evidence husband that he consideration jury. one for pertinent and was question, Maddox, 500, 84 Am. R. Ga. St. 795, v. Scott 776; Hood on Wills ed.), on Wills (2d Page §.357. new trial. cause for a 3 and do not show
Special grounds in the cases cited for the’plain were involved questions No such Wallace v. Spullock, in reference to these grounds: tiff error Barnes, 217, 218 (53. 72 Ga. Am. 488; Factory Augusta . E. 300) Ga. 297 Mooney, 158 R. 838); Chedel In- it was that the court erred’ in. special ground purported in evidence carbon -of. admitting *12 the Saliba, paper M. the so .offered objections over - will, and that there was not sufficient stesti- complete was not witnessed the will.... what three particular persons to show mony answer to this would be that introduction A sufficient allegation tended to in the prove petition, this carbon copy of evidence, it was admissible in notwithstanding therefore it-was- will, and whether or itself not there was. complete not within what wit particular to show three testimony persons sufficient Strouse, E. 280); S. the will. Kelly nessed Co., 189 (5 S. v. Thornhill E. County Wagon Cook Products, 2d, Carter v. Marble 881); 179 Ga. (3), Barnett, Livingston Ga. 640 E. (2), 2d, since the contention 385). But is several times in the made record, the evidence as a was not whole sufficient to show what will, three witnessed particular persons since we are of the that such contention is not well founded as a matter of opinion fact, we will to deal with it proceed at this in point, although doing mean to a mere so we do not what imply prove failure to three will would particular persons witnessed the be fatal to the plain- case, view of tiff’s other circumstances evi- proved, including to the effect that it was witnessed five dence three particular testified, all of whom were called and as shown the state- persons, case, view ment. As we decision is as to the necessary latter and therefore none will be question, made. shown in division of this W.
As opinion, testimony L. who attorney drew the when considered in con- Ferguson, a letter he had written Farkas, nection with Mr. attorney follows: substantially That recol- plaintiff, according to his lection, bank, will was either in signed his office or in the he, and R. A. witnesses, J. Hill King, were the other evidence that the two last-named showing persons employed further, bank. He stated however, in the that he be in might this, about because will might error have been witnessed by secretary, Timmerman, and his Miss Marlin, himself and R. R. office,and that while he could not swear who were positively witnesses, letter he had written to Mr. Farkas these containing was correct “as whole.” All of statements the persons named him as witnesses possible testified, were called and but none had recollection as to them whether they had witnessed the Mr. not. Ferguson further testified that the date of. this referring copy) was (evidently left the “blank” day because will was February, not executed at the time same it was .the date drafted and written. and on This statement detract from any way what he did had previously testified. Timmerman, Miss secretary, that, His testified -while she could not that, she thought if the testator say positively, had been going office, will “in our we would have sign typed the date the- and not left it blank.” there month This testimony tended to the “recollection” of Mr. Ferguson to the support effect
806 himself, R. A. E. Hill, King; will witnessed J. find, a whole the were authorized to from evidence as jury rule, in fact under the that the clear-proof signed to do so individuals as witnesses. these three particular Moreover, a witness can never as to testify truthfully any past connected, Ms which he was except transaction with recollec from tion., so, to find the declared against is not jury required he he merely may of a witness because states that recollection mem recognizing error cannot swear that his positively —thus See, be infallible. average person, may like ory, v. 201 E. connection, Gillespie, (40 Fletcher 377 (4) Ga. S. 2d, 198 626 2d, Hardy, Turner v. Ga. 642 S. 45); (4), (32 E. Richards, 19 Ga. 489 S. E. App. 914); Matthews v. 483); Trimmier, 42 App. (157 Ætna Insurance v. Ga. 745 S. E. Co. Jenkins, 44 682 340; App. Ga. Barrington 642); (162 v. 2d, 419 427 S. E. Ray, 361). Carter 70 Ga. App. (4), (28 v. 8. is no merit In this special ground It follows that there indicated, we need not determine view, as we have whether already would be bоimd prevail, prove in order to what the plaintiff, in view all witnessed persons three particular to the matter of witnessing; the record but in relating evidence in 38-212, 38-706; Code, to that see Gillis v. question reference §§ Gillis, 107, 143, 14-18 S. E. 30 L. R. A. Am. (23 51 (2), Pitman, 530 Burge Felton v. 14 v. (1, 2); Ham 121); St. R. Saliba, ilton, 201 Ga. 2d, Saliba 577 (40 72 Ga. (2f); concurrence; Thornton’s on the Law of Monograph 511), special 101; 68, 69, 137, 1 Jarman on the Wills, Probate Lost §§ 223; Brown, Dan v. (N. Cowen ed.) Y.) Wills (Perkins’ Estate, In re Resencrantz’s 191 Wis. D. 395); Am. Phibbs, deceased, Law of C. re Estate Reports N. R. W. Gaines (1917); Probate page Henning, Division, (Eng.) L. ed. 553 (16 S.U. evidence, counsel for the close of the defendant
At
upon
to elect
which
plaintiff
court to
of-
require
requested
ask a verdict. The court refused
he would
counts
the two
of in
complained
special ground
is
ruling
and this
request,
plaintiff, though
merit
this ground.
pleading
is
There
relied
one and the same
counts,
cause
upon
in two separate
his case
circumstances under
both,
which
merely
varying
action
is
be entitled to
the evidenсe. “It
recover
might
according
more
a familiar rule
that when the
has two or
pleading
plaintiff
distinct reasons for
the relief
when there
sought, or
obtaining
*14
as
or as to the
uncertainty
more or less
to
grounds
recovery
a
in more
single
set forth
claim
proof,
petition may
exigencies
in as
as
many ways
count. The
state his case
pleader may
than one
on
to elect
counts,
in
and he will not be required
he sees fit
separate
106. This
41 Am.
which
he will proceed.”
count
Jur.
in civil and
with the
in this
both
statement accords
State
practice
Co.
&
Electric
Dahlonega
Ry.
criminal
In Gainesville
cases.
Austin,
App. But the error also relies plaintiff upon following statement decision in case: former this “The defendant, contained demurrer been special having his renewed to put entitled an as which of the election to two alternative plaintiff theories . . relies a basis of and the upon recovery as court by over- denied all this demurrer ruling having right, subsequent pro- became This statement was ceedings nugatory.” referring to the defendant, demurrer, of the right require plaintiff to elect, aas matter of on which of two pleading, alternative theories in his which he would at that time contained rely petition, only count, has of election single application question now in the motion for a new presented trial. follow special ground the movant of the complained
ing from the court: burden of excerpt charge proof, of the' “The is, the burden of truth case upon rests proving must and it of evidence proven by preponderance propounder, hereinafter stated. A of evidence means except preponderance involved, of the evidence the issues weight upon that superior which, mind from a enough wholly while not free the reasonable is sufficient to incline a reasonable and mind doubt, yet impartial other; side of the issue rather than to the greater degree one Of to establish lost proof required the contents of the and the clearly prove must propounder thereto;” and along and the'witnesses of the testator signature error the next succeeding para movant assigned this excerpt the witnesses and credibility preponderance charge graph *15 Of evidence. movant contended that the the foregoing ground,
In this is erroneous excerpts) contrary to both and (referring “charge” the had burden of that the propounder clearly reason law, the as an attached to the petition alleged that paper the (1) proving in the by executed the testator man- actually was will of the copy is, witnesses; of three law, presence in the (2) that by ner provided will, of said and that the actually copy (3) was said death, with- before the testator's destroyed lost or was will alleged to his destroyed subsequently was lost or death. consent, or his out had the the burden plaintiff contended further mоvant The case, involved in the and that issue there every clearly proving of could simply prove by the propounder pre- which issues evidence. the of ponderance the “a that the of portion charge, greater also contended
It of an establish a copy lost required of proof degree clearly prove must contents of the will, propounder the testator and the witnesses thereto,” of the signature law, for the reasons: (a) contrary prov- erroneous n and the witnesses the testator thereto relates signature ing the thereon; the actual signatures will with (b) original an showed that alleged copy evidence uncontradicted it, of G. M. Saliba on nor signature have the did it not did signature any witnesses, subscribing and there- fore was not portion- charge evidence; authorized by the that it the defendant of the benefit (c) deprived of the presumption of revocation. elsewhere in charge court gave entire section of the Code of a lost will
as to probating (Code, 113-611), and when a whole, is considered as there is charge no merit in any these Fletcher v. Gillespie, of error. assignments Ga. 377 (40 S. E. 2d, Ga. 286 45); Christopher Mooty, 155 Special ground was abandoned.
Special ground assigned error charge: following “I that the charge you in favor presumption of revocation bemay rebutted by the will was not showing that destroyed by testator, direction, and in his by it, or that if presence, he did did intend to thereby revoke the will. Evidence of this may sort circumstantial, as well as direct. You consider may rela tion circumstances of the also parties; the declarations of the- testator made freely voluntarily, you if believe he made declarations, such to show tending that he had a will and that he it; was satisfied with also all the evidence that has been admitted satisfaction, prove your would under the rules of law I have and will given you charge givе you charge, that the will was not revoked.”
This charge entire was attacked as being expression of opin- ion the court as to the weight and sufficiency the evidence. It was contended also that declarations testator that he had a will could not be considered jury, unless such declarations related to the and in particular view of certain evidence set *16 out in this of the the declarations motion, of the testator not, as movant contends, did the relate to the particular will, copy was of which to be sought probated, therefore such declarations testator should not by the have been considered the by jury the as to whether the in favor question presumption of revocation had rebutted. been further
It was contended that no evidence was produced that the will not testator, had been the destroyed by and that the charge the that of revocation presumption could be rebutted by showing the testator did not that the will was destroy without any evidence it; that the declarations testator, made the support by to that he had it, were not sufficient rebut
a was satisfied with the pre- will and will, since there was no he had revoked his testimony sumption original what became of the will after it was deliv- as to whatever It was also the testator. contended the portion ered to in favor “I that the of revocation you presumption charge, charge will was the the not showing destroyed by be rebutted may by direction, and in his if he testator, presence, or his or that by will,” intend to revoke the created the it, thereby did not did he evidence, in the absence of that the burden any jury, minds of the show that the will was not destroyed by defendant to onwas the and in his or that if he testator, his direction by -presence, the intend to revoke the will. did not it, thereby did he manner in several to the which provisions The Code contains revoked, which the following: are “An among a will be may destruction by be effected may revocation obliteration express done the or by will or testator original duplicate, by Code, revoke.” 113-404. “In an intention to all direction § revocation, revoke the intention to is necessary of to make cases of revocation will not An clause express operate upon it effectual. where it manifest that such was not testamentary the paper 113-405. intention.” Ga. 571 Achey, Wood v. it was said 1021), revocation, in a kind, case be presumption may
that the other rebutted, ways, by proof will lost or among consent, the death of the testator without his destroyed prior submitted, such effect is evidence to the that, question “where has been overcome is for determination presumption whether all the evidence and in view of circumstances in the by jury attributed jury witnesses.” case, credibility by and the be made circumstantial such rebuttal could Manifestly, well evidence, and a cаse like the present, where direct into custody traces a will of the testator evidence direct can only that the assert that propounder seems what- stops, there will after' its delivery happened testator, may ever it, and then submit circumstantial evidence, revoke did testator, if any, support declarations such including ease, judge may such instruct Also, jury assertion. of revocation that the favor presumption may effect not destroyed by showing testator, rebutted *17 it, thereby did not intend to revoke if he did destroy or instruction, others, an like must' that such will; only the provided The circumstantial evidence sufficient evidence. be supported authori the See charge question. to support was sufficient here State, 18 Ga. also Keener 2, supra; cited in division ties Ins. v. Hanke Accident Co. National & Am. D. (5) (63 Life Dews, 73 rson, Martin v. E. 590); S. App. Ga. 2d, 577); 2 American Law The 76 (35 App. Ga. Wills, 221; Eood on 3d. ed.), p. Administration (Woener, § Hewlett, 114 357; Va. Jackson p. testator, in refer- the declarations of the as to charge
Nor was it, to subject satisfied made a will and being to having ence the the jury restrict expressly it because did exception probate. sought the propounder of which particular construction susceptible not reasonably The charge they of whether regardless be considered could statements therefore, if defendant not; will or particular related to restriction, such an express containing desired a charge had suffi- evidence was The made. should have been therefor request testator did that the statements authorize finding cient to 12, infra. will. See division to that particular have reference in the foregoing the last clause no contention There is semicolon, and containing expression last following excerpt satisfaction,” “dumb act.” violated the your would prove “that special ground merit There is no the following charge: error on assigned
Special bemay of a will proper that the execution charge you “I further witnesses attesting testimony, provided by competent proved cases, is as in other inquiry, and examined. The are produced duly the execution is whether, all the testimony together, taking the essen It is not one or more of required any established. all number of the any attesting proved by should tial facts not allow of the valid execution and law does proof The witnesses. defeated at the time of probate by a will to be testation of wit memory part subscribing failure of nesses.” to an applied appli- here would be correct as quoted
The charge will, and contention to there original to probate cation error all point contrary. assignments go probate erroneous the instant inapplicable proceeding 'an of a will. *18 Fletcher v. said that Gillespie, (supra), it was
the provision Code, of the 113-611 as to clear the sub proof by § and witnesses other еvidence” no more limits of the scribing proof of execution a will to of the testimony the witnesses subscribing 113-602, than does to solemn form. relating probate Since just the as provision mentioned to of follows probate thé will, an procedure probating original that it adds the except rule, clear-proof there was error in the basic giving charge rule. The did not charge expression contain an of as to opinion the that should case, be to the evidence in weight given the as insisted. follow-; special ground the movant complained of the
ing “Where the charge: clause recites all the attesting of facts essential to due will, its execution as a and it shown by sufficient alleged evidence the testator the witnesses affixed théir signatures to the the paper, presumption arises that it was executed in the law, manner prescribed this one or though so, more is. other witnesses testified have total failure they of memory as to some all the of circumstances the execution.” attending
This charge was a of the law correct statement applicable to the will, of probate original since there was evidence to the effect that the original will was signed by the testator and attested three witnesses, as the particular persons judge did not err stating this of law rule their jury for consideration con- nection with the as to testimony execution and witnessing.'
The first
to
exception
the
charge
contention
presented
it was not
applicable
of a
of
probate
a lost or destrojud
will, and the remaining exceptions proceeded upon the same theory.
None of them showed error. Wells v.
Thompson,
Ga. 119 (4)
S. E.
47 L. R.
(78
1914C,
Ann. Cas.
S.)
(N.
A.
898);
Shewmake,
Shewmake v.
1046);
S. E.
(4)
Wood
Davis,
v
Special under the rules jury, of law gentlemen charge you, “I believe you if Saliba George M. charge, you have given I will, would yоur duty then it his find destroyed intentionally form be, ‘We, -and the verdict should your against hand, On if the will/ the other against you should find jury, did not M. Saliba George intentionally destroy believe that ‘We, be, verdict should find in favor your jury, then the form This, four assigned error charge upon will/” (b), (c), designated (a), (d). grounds, contention that this presented charge deprived (d) Exception of the right clearly proved, the defendant find that execution directing jury was tantamount the will had been shown evi- clearly alleged copy for the referred' to in the brief This is the contention dence. only motion, and to this as related in error plaintiff n considered. of error will not be the other assignments therefore just quoted, judge last sentence of excerpt In the M. that, if should believe that they jury instructed *19 of the his then the form destroy not intentionally Saliba did This be, in favor of the will.” “We, the find jury, should verdict was error. mere in favor of the a plaintiff by could not be concluded
The case but, will; destroy did not his intentionally the testator finding find be to that the that, necessary plain it would and beyond over Code, such.” 113- “to be alleged clearly proved had tiff Accordingly, Gillespie, (4) (supra). Fletcher v. 611; court, far in this upon so as insisted of motion, this ground been sustained. should have well taken assigned as error in charge Other portions 13, 17, 20, motion, wit, 18, 12, to remaining grounds the plain- are controlled adversely of these exceptions most The in this All of opinion. made heretofore by rulings error tiff in examination, are found to them, on be without substance. consider now general
We motion for grounds We virtually have been required pass upon ques new trial. whether the evidence introduced sufficient to support tion as verdict, in several grounds, dealing special particularly division and we supra, may say finally that we think was so verdict authorized. testator himself had no child. Several witnesses testified him express had heard affection and they great concern for who infant was the child of his deceased plaintiff, brother. The evidence also shows many statements were made himby times, to different at persons, different some before long death, to the effect that he intended to provide for the child, and he had made a will which would take of it. care We do not here words, undertake to state his exact but merely state their gen- eral meaning according what the import, could have jury found from evidence. It is true that he did not at any time describe in terms the specific provisions of the particular will in question, some his statements not have may tallied in all Avith respects it. Yet the evidence was sufficient to authorize rule, under the finding, clear-proof he did execute the identical will, a of Avhichwas sought to probated; and there being wa,s nothing show that he ever executed a subsequent will, it that, inference all legitimate statements which he referred to a he was to this referring particular will. Considering whole, evidence as which included some relevant facts and circumstances in addition to these statements of the testa- tor, we think that the evidence was not only sufficient to meet the requirements of the law as to clear proof the alleged but copy, revocation, also to rebut the presumption of and to authorize the verdict See finding plaintiff. authorities cited in divisions 2, 4, 8, supra.
Nevertheless, for the Reasonsstated in divisions 2 point- trial, out errors in the the motion for ing a new trial should have been granted. main Judgments reversed and cross-hills exceptions. J.,
All the Justices concur except Wyatt, who took no part in the consideration or decision this case. *20 P. concurs in the
Duckworth, J., judgments of reversal for reasons stated but dissents from opinion, rulings head- 5 and 12 notes divisions of corresponding the opinion as to the of the evidence to show what three sufficiency particular persons the will and to support witnessed verdict. HARRISON MOORE v. et al. " September Rehearing 5, 1947. 15911. denied No. October