Ellis v. O'Neal

• Decision Date: 13 September 1932
• Docket Number: 8602.
• Citation: 165 S.E. 751,175 Ga. 652
• Parties: ELLIS et al. v. O'NEAL.
• Court: Georgia Supreme Court

165 S.E. 751

175 Ga. 652

ELLIS et al. v. O'NEAL.

No. 8602.

Supreme Court of Georgia

September 13, 1932

Rehearing Denied Sept. 27, 1932.

Syllabus by the Court.

Pleadings and evidence raised fact issue whether writing sought to be propounded had been revoked by unattested alterations; hence court improperly directed verdict for propounder.

Parol evidence is admissible to show what papers constitute will offered for probate, even though attesting clause is properly executed.

Testator's statements before, during, or after execution of paper sought to be propounded are admissible on question whether paper is identical with writing which witnesses attested.

There is greater latitude in admitting parol evidence on issue of probate than on construction of will after probate.

In will contest, revocavit vel non is fact question for jury.

In will contest, testator's declarations made prior to or at time of execution of will, or its revocation, are admissible.

Testator need not declare or publish to attesting witnesses that paper they are signing is his last will.

In will contest, admitting photostatic copies of papers allegedly constituting will, with pencil interlineations, held not to require new trial.

Propounder has burden to prove that paper offered for probate is last will of alleged testator.

Judgment dismissing petition to set aside judgment of ordinary probating will in common form held not bar to application to probate will in solemn form, where parties and issues were not same (Civ. Code 1910, § 4336).

1. Under the pleadings and the evidence in this case, an outstanding issue of fact is whether the writing sought to be propounded as the last will and testament of the alleged testatrix had been revoked by the substitution of additions to or alterations in a former will, by the insertion of new provisions which had not been attested as required by law.

2. Parol evidence is admissible to show what papers constitute a will offered for probate, with the attesting clause and witnesses signing according to law.

3. Statements of the testator, either before the execution of the purported will, at the time of the execution, or after the execution of the paper sought to be propounded, are admissible to aid in determination of the fact whether the paper offered for probate is identical with the writing which was attested by witnesses as required by law. Greater latitude is given to the admission of parol evidence on issue of probate than on the construction of the will after probate.

4. Revocavit vel non is a question similar 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.

5. The ruling of the court upon demurrers to the caveat of the defendants, while sustaining the demurrers as to the publication of wills, submitted to the jury the question as to whether the paper sought to be propounded was the identical paper which had been attested.

6. The issue thus submitted by the application for probate in solemn form and the caveat as amended by the ruling of the court thus became one of revocavit vel non.

7. If it was error to admit the photostatic copies of the papers alleged to constitute the alleged will, with the pencil interlineations, as complained of in the first ground of the amendment to the motion for a new trial, the error is not such as would require the grant of a new trial, and will no doubt be corrected upon another investigation.

8. Under the pleadings and the evidence in this case, the application of William Lee Ellis to set aside the judgment of the court of ordinary probating the will in common form, set up by two of the next of kin of the decedent, is not a bar and answer to the application of the representative of the deceased to probate the will in solemn form, in which these two next of kin assert that the will sought to be propounded was in fact never executed.

9. The court erred in repelling the testimony set forth in the second and third grounds of the amendment to the motion for a new trial.

10. The evidence in this case, being entirely circumstantial as to the controlling issue in the case, which was to ascertain the truth as to whether the testatrix by changing her will thus revoked it, presented two conflicting theories, either of which would have authorized a verdict in favor of the caveators; and it was therefore error to direct a verdict.

11. The burden is upon the propounder to prove that the paper offered for probate is the last will and testament of the alleged testator; and if from the evidence the jury are not satisfied that the paper offered is the true will and testament of the deceased, the propounder fails to carry the burden imposed upon him by law, with the result that the estate must be inherited in accordance with the statutes of distribution.

12. The court erred in overruling the motion for a new trial.

Error from Superior Court, Bibb County; Malcolm D. Jones, Judge.

Proceeding by Mrs. Gazalene M. Hardeman, as administratrix de bonis non cum testamento annexo of the estate of Mrs. Mary Gazalene Lamar Ellis, to probate the will of Mrs. Mary Gazalene Lamar Ellis in solemn form, opposed by William Lee Ellis, Jr., and others, wherein, upon the death of Mrs. Hardeman, the ordinary appointed in her place Mrs. Margaret Wise O'Neal. Judgment for propounder, caveators' motion for a new trial was overruled, and they bring error.

Reversed.

GILBERT J., dissenting.

Judgment dismissing petition to set aside judgment of ordinary probating will in common form held not bar to application to probate will in solemn form, where parties and issues were not same. Civ.Code 1910, § 4336.

Smith & Smith, Geo. A. Pindar, and Park Strozier, E. W. Maynard, and B. J. Fowler, all of Macon, for plaintiffs in error.

Hall, Grice & Bloch, of Macon, for defendant in error.

RUSSELL C.J.

Mrs. Gazalene M. Hardeman, as administratrix de bonis non cum testamento annexo of the estate of Mrs. Mary Gazalene Lamar Ellis, made application to probate the will of Mrs. Mary Gazalene Lamar Ellis, in solemn form. Mrs. Ida Ethel Naylor, Hayne Ellis, and William Lee Ellis became caveators. The application was appealed from the court of ordinary to the superior court. Mrs. Hardeman, administratrix, having died, the ordinary of Bibb county, over objections, appointed in her place Miss Margaret Wise, who later became Mrs. Margaret Wise O'Neal. The caveators objected to the substitution of Mrs. O'Neal for Mrs. Hardeman, on grounds as follows: "1. Because there is no law justifying the making of said Miss Wise a party as aforesaid. 2. Because the mere fact that Miss Wise has succeeded Mrs. Gazaline H. Hardeman as administratrix with the will annexed de bonis non of the estate of Mrs. Mary Gazaline Lamar Ellis under probate in common form does not entitle said Miss Wise to be made a party in lieu of said Mrs. Hardeman to a proceeding to probate the will of said Mrs. Ellis in solemn form. 3. Because upon the death of said Mrs. Hardeman the proceeding by her to probate in solemn form the will of said Mrs. Ellis abated." The court overruled the objections, and the caveators excepted and assigned error on that ruling. The grounds of caveat were: "1. The papers and writings propounded as the last will and testament of Mrs. Mary Gazaline Lamar Ellis were not signed, declared, or published as such by her as required by law. 2. The papers and writings propounded as the last will and testament of Mrs. Mary Gazaline Lamar Ellis were not signed, declared, or published as such by her in the presence of the persons whose names purport to be subscribed thereto as witnesses thereof. 3. On March 2, 1917, Mrs. Mary Gazaline Lamar Ellis did not hate mental capacity sufficient to make a will."

The grounds of demurrer to the caveat were as follows: (1) The first ground of the caveat is insufficient in law, for that it does not set forth with proper specification wherein the propounded document, or the "papers and writings" were not signed, declared, and published by Mrs. Mary Gazaline Lamar Ellis, as required by law. Propounder is entitled to know wherein caveators assert that said signing, declaring, and publishing of said papers and writings failed to comply with the requirements of law. (2) There is no requirement of law that a testator publish his will in order to make it a valid will. (3) There is no law requiring a testator to declare the instrument which is executed to be his will. (4) It is not required that a testator declare, in the presence of the persons whose names purported to be subscribed thereto as witnesses, that the paper is his last will and testament. (5) It is not required that a testator publish, in the presence of the persons whose names purport to be subscribed thereto as witnesses, that the paper is his last will and testament. The court sustained the demurrer in so far as it related to the declaring and publishing of the will, and those parts of the caveat were stricken. To this ruling the caveators excepted and assigned error. After the introduction of evidence the judge directed a verdict in favor of the propounder, and afterward overruled a motion for a new trial, and the caveators excepted. In addition to the general grounds the motion for new trial was predicated upon four special grounds, which will be referred to hereinafter.

1. The evidence in the case is extremely voluminous, and this must necessarily be reviewed and carefully considered in the determination of the merit of the fourth special ground of the motion for a new trial, which complains that the court erred in directing a verdict, because there were issues of fact which would have authorized a...