Horton v. Burch, S96A1263
| Decision Date | 01 July 1996 |
| Docket Number | No. S96A1263,S96A1263 |
| Citation | 471 S.E.2d 879,267 Ga. 1 |
| Parties | HORTON v. BURCH. |
| Court | Georgia Supreme Court |
Frederick V. Massey, William E. Hicks, Hicks & Massey, Winder, for Horton.
Walter G. Sammons, Jr., Williams, Sammons & Sammons, Warner Robins, for Burch.
James F. Nelson, Jr., Nelson, Gillis & Smith, Dublin, for Appellee.
In May 1992, Mary Frances Burch Horton executed an original will and two duplicates thereof, 1 devising all of her real property to a neighbor, Earnest Freeman. All three documents were executed with the same formality and contain the original signatures of the testator and witnesses. Ms. Horton took the original and one duplicate while her attorney kept the remaining duplicate. In 1993, Ms. Horton executed a codicil to her will in order to leave a table to her church. Shortly after her death in June 1994, her duplicate of the will was found in her safety deposit box, but the original will and codicil have not been located. The testator's nephew, Burch, who was the executor named in the will, offered the duplicate for probate; William Horton, the testator's son, caveated on the basis that the will was not original. The probate court denied the executor's petition and appeal was made to the Superior Court of Twiggs County. The trial court denied Horton's motion for summary judgment, citing OCGA § 53-2-74 and King v. Bennett, 215 Ga. 345, 110 S.E.2d 772 (1959) for the proposition that there "must first be evidence of the condition of the [original] will which raises the presumption [that the testator revoked the original will]" and finding that there was insufficient evidence to show as a matter of law that the testator destroyed the original will with the intent to revoke it. We granted Horton's application for interlocutory review of the trial court's order. Because we find that the trial court failed to recognize that the "condition of the will" in this case was that of a lost will so that a presumption of revocation arose pursuant to the express terms of OCGA § 53-3-6, we reverse.
OCGA § 53-2-74 addresses express revocation and provides that a will may be expressly revoked "by any destruction or obliteration of an original will or a duplicate thereof." OCGA § 53-3-6 addresses lost wills and provides that if a will is lost during the testator's lifetime, destroyed without the consent of the testator during his lifetime, or lost or destroyed subsequent to the death of the testator, a copy of the will, clearly proved to be such by the subscribing witnesses and other evidence, may be admitted to probate and record in lieu of the original. Id. at (a). Both statutes address problems that arise when there is an executed original will and one or more copies thereof: OCGA § 53-2-74 provides the procedure to be followed where there is a material alteration to either the original will or a copy; OCGA § 53-3-6 provides the procedure to be followed where the original will is lost but a copy is available. No distinction is drawn in either statute among the types of copies that might be made, e.g., carbon copies, photo copies, computer-generated copies, etc. Nor is any distinction drawn among copies that are unsigned, signed only by the testator, or fully executed with the same formality as an original will. A review of Georgia's statutory scheme regarding the execution and revocation of wills reveals that all copies of an "original" will occupy the same legal status notwithstanding the manner in which the copy was executed or reproduced. Thus, there can be only one "legal declaration of a person's intention regarding the disposition of his property after his death," OCGA § 53-2-1, albeit an individual's declaration of that intention may be set forth in more than one document. See, e.g., OCGA § 53-2-5 (codicils); OCGA § 53-2-75 (implied revocation). We disapprove the use of the term "duplicate original" as it misleadingly implies there can be more than one original will and fails to comport with Georgia's statutory scheme of recognizing that an individual has only one will, no matter how many copies thereof that may be executed. 2
We do not agree with appellee that King v. Bennett, supra, supports drawing an artificial distinction between "duplicates" of wills offered for probate and "duplicate originals" of wills offered for probate. In King v. Bennett, the original will was found cancelled in material part (torn in four pieces with the signature removed) but an undamaged duplicate also existed, with identical terms and with original signatures. In an initial paragraph setting forth uncontested evidence and the propounder's argument, we noted that the propounder sought to probate the duplicate "as an original will," id. at 348, 110 S.E.2d 772 and stated that [s]ince the execution in duplicate was clearly proved, and the document was signed and attested as the will of the deceased, it should properly be admitted to probate, unless it was revoked by the testat[or] during her lifetime.
Id. This Court then analyzed the case under the predecessor to OCGA § 53-2-74 (Code Ann. § 113-404); applied the presumption of revocation that arises when an original will is found cancelled or obliterated in material part, McIntyre v. McIntyre, 120 Ga. 67, 70, 47 S.E. 501 (1904); and concluded that the "evidence of the condition of the original will ... raised a presumption that the cancellation was done by the testa[tor] and that she intended to revoke the will." (Emphasis supplied.) Id. at 349, 110 S.E.2d 772.
A review of the opinion in King v. Bennett thus reveals that, notwithstanding the inapt language in the introductory paragraph regarding a duplicate will sought to be propounded as an original, the appeal was properly analyzed and resolved under the statutory and case law applicable to copies of wills where the original is found in an obliterated condition. OCGA § 53-2-74. We cannot read King v. Bennett as creating a new rule of law regarding duplicates executed with the same formality as originals and disapprove any interpretation of King v. Bennett that would draw such a distinction. 3
Unlike the situation in King v. Bennett, supra, the original will executed by Ms. Horton has not been located. It is lost. 4 Therefore, reference must be made to OCGA § 53-3-6, which applies whenever a will is lost during the testator's lifetime, id. at (a)(1); 5 destroyed without the consent of the testator during the testator's lifetime, id. at (a)(2); or lost or destroyed subsequent to the death of the testator. Id. at (a)(3). OCGA § 53-3-6 allows the admission to probate of copies of wills clearly proven to be such by the...
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