Burge v. Hamilton

• Decision Date: 10 June 1884
• Parties: BURGE et al. v. HAMILTON et al., executors.
• Court: Georgia Supreme Court

72 Ga. 568

BURGE et al. v. HAMILTON et al., executors.

Supreme Court of Georgia.

June 10, 1884

February Term, 1884.

[This case was argued at the last term, and the decision reserved.]

1. A will was executed on July 18, 1881; as offered for probate it 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 6, the number appeared to have been changed from 5 to 6; on page 8, the number appeared to have been altered from 7 to 8; on the last page, the number 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. On the last page was written the following:

" I nominate and appoint David B. Hamilton, Judge George Hillyer and Eben Hillyer to be executors of this my will, to carry the same into effect according to law, and which will I have written on the above and foregoing pages, numbered from 1 to 11 inclusive, and identified by name on the margins, and hereunto subscribed my hand and affixed my seal for its due execution, this the 18th day of July, 1881."

On the page preceding this, and numbered 9, was the residuary clause, leaving all the residue of the estate to a residuary legatee. In July, 1882, a codicil was executed, in which it was stated that it was a codicil to the will of July 18 1881, and that said will was ratified, approved and declared to be the testator's " last will in all respects except in so far as the same is changed by this codicil " it also referred to the witnesses to the original. This codicil was written by the attorney and confidential adviser of the testator, and its pages were numbered 12, 13 and 14. It referred to the subject-matter of certain of the items contained in the original will. This codicil was attached to the paper offered as the original will; and the two were offered for probate together, as forming the last will and testament of the testator:

Held, that the two papers together present an ambiguity as to the number of pages and the identity of the paper as propounded with the will as executed; and it was admissible to show by the attorney, who drew the codicil and was a witness to it, that the will, as then exhibited to him by the testator, was the same as that offered for probate; that it had only the same ten pages; that he read it over to the testator carefully page by page, to see what alterations were desired to be made by the codicil; that he took it home with him, at testator's request, to see that it should be all right, and that the codicil might be prepared so as to fit in with it; and that he mentioned to the testator the mistake in paging, who simply observed that it was a mistake.

( a. ) Such facts could be shown by the attorney who drew and witnessed the codicil, and being supported by adminicular proof of identity, it would warrant the jury in finding in favor of the will.

2. The following principles may be deduced from the decisions of the English courts, and the Code and decisions of this court do not conflict with them, but in many respects enlarge the scope thereof.

( a ) Parol evidence is admissible to explain ambiguities.

( b. ) Also to show what papers constitute a will offered for probate, with the attesting clause and witnesses signing according to law.

( c. ) Also to show the identity of the will with the paper propounded, by statements of the testator at the time of the execution, before the execution and after it.

( d. ) Greater latitude is given to the admission of parol evidence on issues of probate than on the construction of the will after probate.

( e. ) A codicil expressly affirming a will which could not convey realty or was illegally executed, if that codicil be legally executed, made the will valid, especially if annexed thereto.

( f. ) 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.

3. Although a will as originally executed may have been altered by the testator after that execution, yet if republished by a codicil, by being referred to therein and annexed thereto, it is made valid thereby; and it may be proved by extrinsic evidence that the alteration was made before the codicil.

( a. ) Revocavit vel non is a similar question to devisavit vel non, and is a question of fact for the jury; and declarations made prior to or at the time of the execution of the will or its revocation are clearly admissible.

4. Taking into consideration the circumstances of the case, it is morally certain that the will and codicil offered for probate contain the disposition and the entire disposition which the testator desired to make, and did make, of his property.

( a. ) The parts of a will identified would not fail of probate on account of a missing part whose contents were unknown; and it not appearing in this case, if any part be missing, how far it would interfere with that which is present or in what way, a court will not destroy legacies before it.

5. The judge has the discretion, in trying issues in civil cases, to have the jury stricken from the grand jury list.

6. There was no error in the charge or refusal to charge on the subject of the will being unnatural. A husband and wife being one, her kindred become his, and legacies to them were not unnatural.

( a. ) In this case, it was more natural that the testator should give his property to his wife's kindred who grew up around him and associated with him- especially those whom he raised from infancy-than to those of his own kindred whom he rarely saw and scarcely knew.

7. There was not enough evidence on the issue of undue influence to raise a question about its exercise by anybody over such a man as the testator was, in the legal sense of undue influence; and there was no error which hurt the plaintiffs in error in refusing to charge as requested thereon.

8. There was no error in ruling and charging to the effect that parol evidence could not change, add to or contradict a written will, but where there were ambiguities, whether latent or patent, they could be explained by it; nor in refusing requests to charge to the contrary.

( a. ) There were ambiguities needing explanation, and it was proper to refuse to charge on the theory that there were none.

9. There was no error in the admission of parol evidence to identify the paper propounded as the will of the decedent.

( a. ) There was no error in the charges or refusals to charge which requires a new trial. The general charge was fair, and the issues were fully and fair submitted.

10. Motions for continuance are in the discretion of the presiding judge, and unless that discretion has been abused and the ends of justice demand it, this court will not interfere with the ruling of the court below.

( a. ) It will not necessitate a new trial that the court refused a continuance, on the ground that a witness had not been examined by interrogatories and was under promise to be present and her presence was desirable, where it appears that such witness was desired to testify on the question of undue influence, and that if her testimony were had, it would not, and ought not, to change the verdict.

( b. ) Nor will it require a new trial because the court refused a continuance on the ground that certain clients of the moving attorney had just been made parties, it appearing that they lived in other states and were infants, and could have been of little use on the issue of undue influence, and the great issues in the case being on legal questions-on the admissibility of the testimony of the attorney who drew the codicil to the will, on the admissibility of the testator's statements, on the words and figures of the will and codicil, whether plain or ambiguous; especially as it does not appear that any one of the absent clients was a lawyer or capable of aiding counsel in this case.

HALL, J., concurred.

BLANDFORD, J., dissented from 10th head-note and subdivisions.

Evidence. Wills. Husband and Wife. Ambiguity. Continuance. Parties. Before Judge STEWART. Floyd Superior Court. March Term, 1883.

On August 7, 1882, D. B. Hamilton, George Hillyer and Eben Hillyer, as executors, propounded for probate a paper as the last will of Alfred Shorter, deceased, with a codicil thereto. They set out the names of a number of persons as being next of kin of the testator. Citation issued, and was served and published. A caveat was filed, on the grounds of undue influence, fraudulent practices to influence the testator; that he labored under a mistake of fact as to the conduct of his heirs at law; that he was between eighty and ninety years of age, and yielded himself to the wishes of D. B. Hamilton and his family, and refused them nothing, and that frauds were practiced by them in various ways; that letters written were never received; and that relatives were so treated as to be compelled to leave, etc.

The ordinary rendered judgment in favor of the will, and ordered it to be recorded, and caveators entered an appeal. On November 20, 1882, at the instance of the propounders, the judge of the superior court passed an order to have citation and service perfected on certain persons, as heirs at law and next of kin of the testator, who had not previously been named, and making them parties. One of the parties so named was a resident of Georgia; the others were living in Florida, Washington, D. C., and Arkansas, and were to be served by publication.

When the case was called, on March 28, 1883, a motion was made for continuance. (For the grounds, see...