Howard v. Cotton, 23887

• Decision Date: 19 January 1967
• Docket Number: No. 23887,23887
• Citation: 153 S.E.2d 557,223 Ga. 118
• Parties: Cecil B. HOWARD v. Mrs. Drew Lawrence COTTON, Executrix, et al.
• Court: Georgia Supreme Court

Page 557

153 S.E.2d 557

223 Ga. 118

Cecil B. HOWARD v. Mrs. Drew Lawrence COTTON, Executrix, et al.

No. 23887.

Supreme Court of Georgia.

Jan. 19, 1967.

Rehearing Denied Feb. 9 and 23, 1967.

Syllabus by the Court

The testatrix first obliterated and canceled material portions of her will with her own hand; then when advised by her attorney who wrote it, that the attorney feared the will was ruined, she proceeded to direct her attorney to write into the will further cancellations and obliterations until every material portion thereof was altered, and directed her attorney to hastily draw another will that conformed with the alterations, saying, 'will you hurry, because, remember, I don't have a will,' and the attorney proceeded to prepare a draft; but before she could change it to satisfy the testatrix, the testatrix died without executing it. These facts completely failed to rebut the presumption of revocation of the whole will, and the verdict and judgment in favor of probate is contrary to law and the evidence.

This case involves the probate of a will, and the only issue in question is whether or not the obliterations, markings and cancellations made on the will by the testatrix, or by her direction, resulted in the destruction of her will under Code §§ 113-404 and 113-405. A concise statement of the material evidence is as follows: The testatrix was in the habit of changing her will from time to time. The will sought to be probated was properly executed in 1958 but at the time of probate showed a considerable number of obliterations, markings and cancellations thereon as follows: Item III, being a devise to a sister was marked out because, as one witness testified, the sister now lived in Florida and testatrix felt she would not live in the house so she desired to omit this devise of a life estate in the property, although the name of another person is written thereon for some unexplained reason. Item IV is marked through and redesignated as Item 3 so as to change the devise in apparently striking a life estate and the method of appointing trustees in reference to a fund to be established from the sale of property. Item V is redesignated as Item 4 so as to change the devise with several different names substituted. Item VI is redesignated Item 5 and changes the devise and the person to receive it. Items VII, VIII, IX and X are stricken in their entirety. Item XI is changed to strike certain shares of stock as a gift to include 'all' of said stock. Item XII is stricken in its entirety. Item XIII is redesignated Item 7 and changes the devise and the recipient of the devise that is, to give 'all' of a certain stock instead of certain shares, but to a different person. Item XV is redesignated Item 8 and changes words and devises, including the trust and trustees therein created. Item XVI is redesignated Item 9 and language is added and stricken with reference to the use of said devise as an apparent trust. Item XVII, shown as '10' is in reality not a devise at all, but it is otherwise untouched. Item XVIII changes the devise by naming a different recipient. The only other original items left untouched were directions as to the type of burial, payment of debts, appointment of the executrix, and a statement that the will was drawn in five sheets and testatrix' name was signed on the margin of each sheet. Her attorney with whom she had communicated on many occasions about this will, the changes she made, and whether or not it was an intention to destroy the will, testified at length in regard to these facts.

At the conclusion of the trial both parties moved for a directed verdict and both motions were denied. The jury returned a verdict in favor of the probate of the 1958 will, and judgment was entered accordingly. The enumerations of error filed in this court after appeal complain of the charge of the court, the denial of the motion for directed verdict and because the evidence was insufficient to support the verdict was contrary thereto, and the error of the court in entering its final judgment.

Robert H. Herndon, Milledgeville, for appellant.

G. L. Dickens, Jr., George S. Carpenter, Jr., Milledgeville, for appellees.

DUCKWORTH, Chief Justice.

In considering the motion of appellee for a rehearing we invited briefs on the question of whether there was an issue of fact for the jury. This opinion is written after consideration of this motion. The obliterations, cancellations and marking out of most of the material portions of the original will are set out in the statement of facts.

Code § 113-404 provides that an express revocation of a will may be effected by any destruction or obliteration done by the testator, or by his direction, with an intention to revoke; and such intention will be presumed from the obliteration or canceling of a material portion of the will. This will was obliterated and canceled in the major part thereof. Very material portions were so canceled or obliterated with different material provisions written therein by pen. In its condition the above Code section interposes a presumption that there was an intent to revoke the whole will. And this presumption must be rebutted by evidence showing the obliterations and cancellations were not done with the intent to revoke the whole will. Counsel for the propounder leans heavily upon McIntyre v. McIntyre, 120 Ga. 67, 47 S.E. 501; Hartz v. Sobel, 136 Ga. 565, 71 S.E. 995, 38 L.R.A.,N.S., 797; and Morris v. Bullock, 185 Ga. 12, 194 S.E. 201, 115 A.L.R. 700, to support his contention that there is evidence to authorize the jury's finding that the presumption of intent to revoke was rebutted. The Hartz case, supra, is the most extreme case we have found where the will was probated despite obliterations and cancellations. There, the testatrix had actually completely cut material portions from the will. The portion cut was a devise to Sidney Hartz of a sum of money; also his name as one of the executors was...