184 Ga. 785 | Ga. | 1937
The will offered, for probate was typewritten, and contained certain alterations made with a pen, as follows: To item 1, designating the manner of burial, was added the words, “and beside my husband’s grave.” Two diagonal cross lines forming a large “X” covering the whole paragraph were drawn across item 3, which devised all of the equity in a farm, on which the devisee held a security deed, described in the item. On the left margin of the paper opposite this item were the words written in ink: “Substitute Pay any amt. due her accclg. to
1. “An express revocation by written instrument shall be executed with the same formality and attested by the same number of witnesses as are requisite for the execution of a will.” Code, § 113-403. “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.” § 113-404. Accordingly, where an instrument found among a decedent’s papers was offered for probate as her will, which appeared to have been canceled or obliterated by drawing marks diagonally across certain material items thereof, the obliteration of which affected the testamentary scheme, a presumption arose that such cancellations or obliterations were made by the deceased, and that she intended them to operate as a total revocation of the will. Porch v. Farmer, 158 Ga. 55 (122 S. E. 557); McIntyre v. McIntyre, 120 Ga. 67 (2, 8), 70, 72 (47 S. E. 501, 102 Am. St. R. 71, 1 Ann. Cas. 606). While statements made in the handwriting of the deceased on the margin of the paper opposite the items thus obliterated or canceled, and designating a contrary disposition of the property covered by such items, but unattested, as well as a general unattested statement written on the cover of the will declaring that the will was to be ineffective, and indicating a different testamentary scheme, would not, under the provisions of the Code section first quoted, operate as an express revocation in writing of the will, such declarations made in the handwriting of the testatrix would tend to support the presumption of law that the material obliterations or cancellations were made by the testatrix for the purpose of revoking the will. Patterson v. Hickey, 32 Ga. 156; McIntyre v. McIntyre, supra. There being no dispute as to the cancellation of material parts of the will and as to these written declarations by the testatrix, and no evidence to indicate that she intended to revoke only the canceled items, the statutory presumption as to a revocation of the entire
Judgment affirmed.