Carter v. First United Methodist Church of Albany, 36411

• Decision Date: 17 September 1980
• Docket Number: No. 36411,36411
• Citation: 246 Ga. 352,271 S.E.2d 493
• Court: Georgia Supreme Court
• Parties: CARTER v. FIRST UNITED METHODIST CHURCH OF ALBANY.

Page 493

271 S.E.2d 493

246 Ga. 352

CARTER v. FIRST UNITED METHODIST CHURCH OF ALBANY.

No. 36411.

Supreme Court of Georgia.

Argued July 8, 1980.

Decided Sept. 17, 1980.

Charles F. Hatcher, Albany, for appellant.

John F. Salter, Walter M. Deriso, Albany, for appellee.

NICHOLS, Justice.

The caveator, Luther Reynolds Carter, appeals from judgment entered in the superior court in behalf of the propounder, First United Methodist Church, admitting to probate, as the will of Mildred C. Tipton, an instrument bearing the date of August 21, 1963.

The 1963 instrument, typed and signed in the form of and purporting to be the last will and testament of Mildred C. Tipton, was found among Mrs. Tipton's other personal papers in her dining room chest after her death on February 14, 1979. It was folded together with a handwritten instrument dated May 22, 1978, captioned as her will but unsigned and unwitnessed, purporting to establish a different scheme of distribution of her property. Pencil marks had been made diagonally through the property disposition provisions of the 1963 document and through the name of one of the co-executors.

The superior court found that from time to time prior to her death, Mrs. Tipton had made it known to her attorney that she needed his services in order to change or revise her will, or to make a new will; that at one time she had written out some proposed changes on tablet paper to be suggested to her lawyer when he prepared a new will for her; and that she did not intend to revoke her will by scratching through some of its provisions and by writing out the proposed changes.

1. The caveator contends in his first two enumerations of error that the will should not have been admitted to probate because it had not been introduced in evidence and the propounder had not proven its execution and the testamentary capacity of the testatrix, or in the alternative had not proven the inaccessibility of the witnesses. The parties stipulated that the 1963 instrument offered for probate had been found among Mrs. Tipton's records and papers in a drawer of a chest in her dining room, and that the 1963 will was executed by Mrs. Tipton and attested by the witnesses to the will. Proof of matters stipulated was not necessary. The trial court's order specifically refers to the "instrument identified as the Last Will and Testament of Mildred C. Tipton" and to "the markings on the Will." The trial court obviously considered the will to be in evidence. There is no transcript of the proceedings below. This court will presume that the will was in evidence. Aviation Electronics, Inc. v. U. S. Energy Conservation Systems, 242 Ga. 224, 248 S.E.2d 610 (1978); see, General Motors Corp. v. Walker, 244 Ga. 191, 193, 259 S.E.2d 449 (1979). The first two enumerations of error are lacking in merit.

2. The caveator contends in the remaining enumerations of error that the superior court erred in admitting the will to probate because the propounder did not produce any evidence to rebut the statutory presumption of revocation. Code Ann. § 113-404.

The case was submitted to the trial court on stipulated facts, and under stipulation that the depositions of Mrs. Tipton's attorney and one of her friends, relating to her intentions, be admitted in evidence. There is no transcript, and the record is sparse as to facts. Each party seems to have felt that the burden of proof properly was to be placed upon the other party and, accordingly, neither made much effort to develop the facts. The issue resolves itself, however, if certain presumptions are placed into proper perspective with each other.

"As a general rule, the burden is on a person attacking a paper offered for probate as a will to sustain the grounds of his attack. But by express provision of our statute, where a will has been canceled or obliterated in a material part, a presumption of revocation arises, and the burden is on the propounder to show that no revocation was intended ... Where the paper is found among the testator's effects, there is also a presumption that he made the cancellations or obliterations ... It having been shown that the paper offered for probate in this case had been in the custody of the deceased up to the time of his death, the propounder was met with both of the presumptions above alluded to." McIntyre v. McIntyre, 120 Ga. 67, 70, 47 S.E. 501 (1904).

The deposition of Mrs. Tipton's attorney, introduced by stipulation in behalf of the propounder, establishes, without contradiction, that Mrs. Tipton had written out some changes in her will on tablet paper and repeatedly had attempted to get her attorney to change or to revise her will, or to make a new will. The parties stipulated that the two writings, the 1963 will and the 1978 manuscript, were found after her death among her personal effects. No evidence appears in the record, and no contention is made, that Mrs. Tipton did not make the marks on the 1963 will or write the 1978 instrument. The presumption that Mrs. Tipton made the pencil marks and wrote the memorandum of her intentions stands unrebutted. Langan v. Cheshire, 208 Ga. 107, 65 S.E.2d 415 (1951); Porch v. Farmer, 158 Ga. 55, 122 S.E. 557 (1924); Howard v. Hunter, 115 Ga. 357, 41 S.E. 638 (1902). The other presumption, that of absolute revocation, is the focal point of our remaining inquiry.

The statute to which McIntyre refers is Code Ann. § 113-404, which provides, in part, that an intention to revoke will be presumed from the obliteration or canceling of a material portion of the will. In Georgia, the drawing of pencil lines through provisions of a will is a sufficient "canceling". McIntyre, supra, at p. 70, 47 S.E. 501. The question of whether or not the canceled provision is "material" is one of law. Howard v. Cotten, 223 Ga. 118, 122, 153 S.E.2d 557 (1967). The caveator contends that the propounder introduced no evidence to rebut the statutory presumption of revocation, and the propounder contends that under the doctrine of dependent relative revocation, or conditional revocation, the facts proven give rise to a presumption in favor of the propounder (which the caveator failed to rebut) that Mrs. Tipton did not intend for her 1963 will to be revoked unless her new dispositions of her property became effective in law. The caveator thus contends that the propounder failed to rebut the presumption of absolute or unconditional revocation, and the propounder contends he rebutted that presumption by evidence giving rise to another presumption, that of conditional revocation, which the caveator failed to rebut.

The doctrine of dependent relative revocation (conditional revocation) has been stated by this court as follows: "It is a doctrine of presumed intention, and has grown up as a result of an effort which courts always make to arrive at the real intention of the testator. Some of the cases appear to go to extreme lengths in the application of this doctrine, and seem to defeat the very intention at which they were seeking to arrive. The doctrine, as we understand it and are willing to apply it, is this: The mere fact that the testator intended to make a new will, or made...