Smith v. Stone

127 Ga. 483 | Ga. | 1907

Cobb, P. J.

(After stating the facts.)

1. The assignment of error in the cross-bill of exceptions, relating to the issue made up as to the genuineness of the will, will be first considered, for the reason that the ruling we make in reference thereto will dispose of many of the grounds in the motion for a new trial filed by the plaintiff. We know of no law which •authorizes a special issue of forgery to be made up in the superior court, upon an affidavit filed by a party to the cause that the will under which his adversary claims title is a forgery. Section 3628 •of the Civil Code, which provides that a special issue of forgery shall be made up when an affidavit is filed that a deed is a forgery, is, by its terms, applicable only to a registered deed. There is nothing in that section which authorizes such a procedure in the ease of a will; nor does it embrace all deeds, but only the deeds which have been registered in strict conformity to law. If the .deed has been registered, but not in the proper place, or not in the proper manner, then this section of the code does not apply. The procedure is purely statutory, is strictly construed, and it would be doing a violence to the terms of the section to hold that the word “deed” embrace a will, .especially since it has been more than once held that the word “registered” is to be strictly construed, and to mean only a deed lawfully registered. See Sibley v. Haslam, 75 Ga. 490; Kennedy v. Harden, 92 Ga. 230; McArthur v. Morrison, 107 Ga. 796. The court erred¿n allowing the affidavit that the will was a forgery to be filed, and in making up a special issue in reference to the genuineness of the paper. Of course, if the will is a forgery, there is a way in which an attack may be made upon it on this ground. The law does not, however, authorize an attack to*be made in the manner followed in the present ■case. The heirs of a’ decedent may Sail upon the executor under a will, which has been proved in common form of law, to prove the same in solemn form before the court of ordinary, provided they move within the time prescribed by law. When the executor attempts to prove the will in solemn form, they may interpose their caveat, attacking the will as a forgery, or upon any other ground of attack to which it may be subject. The issue of forgery was entirely foreign to this case, and hence this judgment will not be conclusive on this question.

2. The motion for a new trial contains, besides the general grounds, numerous special assignments of error, but all of them, with possibly one exception, deal with rulings in reference to the issue of forgery which the court caused to be submitted to the jury. In the view which we take of the general grounds of the motion, it becomes necessary to refer to only one of the special assignments of error. Complaint is made that the court erred in admitting in evidence the certified copy of the will, upon the ground of an abrasion in the will, and words being written over where other words had. been erased, these words being in a different ink- from that in which the other portions of the will are written; and that the word “Ball,” in the signature of the testatrix, was written through the seal and over it, and in a different ink from that used in the body of the will; that where one of the witnesses signed there was an erasure; and one witness signed in a different ink from that used by other witnesses, and that in which the body of the will appeared to have been written. These objections seem to have been urged to the admission of the certified copy, but the erasures, etc., which were the grounds of the objections, appear, from the assignment of error, to have been in the original will itself. If the certified copy was in due form, as it appears to be, it was no ground of objection to the admission of this certified copy that the original will was different therefrom. The original will is not evidence. Robertson v. Hill, ante, 175. A certified copy from the records of the ordinary is the only proper^evidence of the contents of such a paper. If the certified copy was not correct, the remedy of the party objecting to it was to secure a correct copy of the will as it had been entered on the records, and not to produce what purported to be the original will, and thus impeach the certificate of the ordinary that the copy certified by him was correct. All Alíese questions as to whether the paper was the last will of the alleged testatrix are matters within the jurisdiction of the court of ordinary, to be determined either when the executor offers the will for probate in solemn form, of his own motion, or when he is compelled to .do so upon the application of some heir at law or other person entitled, under the law, to call for probate in solemn form. There was no error in admitting in evidence the certified copy of the will, as against the objections urged.

This brings us to the consideration of the general grounds of the motion for a new trial. The plaintiff made out a prima facie case by showing title in Mrs. Ball at the time of her death. The certified copy of the will of Mrs. Ball showed title out of her. As has been held, no attack could be made upon the validity of the will in this proceeding. The evidence, therefore, demanded a finding for the defendant on the issue of title. Such being the case, any errors that might have been committed by the judge in submitting to the jury' the issue made up on the affidavit of forgery will not authorize a reversal of the judgment overruling the motion for a new trial.

3. The only other question necessary to be dealt with is'the assignment of error in the cross-bill of exceptions, upon the refusal to set aside the verdict finding the deed from Mrs. Ball to E. V. Ball to be a forgery. While the defendant has succeeded in defeating the suit in the manner indicated above, and the issue of forgery as to the deed can not be again tried in this case, still, as long’ as that judgment stands, the defendant will be estopped as to the validity of the deed, so far as the heirs and legal representatives of Mrs. Ball are concerned. It is therefore proper that this question should be now determined. The uncontradicted evidence on this issue established the factum of the deed. Under such circumstances the verdict was unauthorized. There was evidence tending to establish what might operate as an estoppel upon E. Y. Ball, but this was not relevant to the issue, and could not be the basis upon which to rest a finding that the deed was never executed. Roberts v. Roberts, 101 Ga. 765. The judgment upon the cross-bill will be reversed, with direction that the verdict finding the deed to be a forgery be set aside, and the affidavit of forgery as to the deed and the issue formed thereon be stricken.

Judgment, on main bill 'of exceptions, affirmed; on cross-bill, reversed, with direction.

" All the Justices concur, except Fish, C. J., absent.