Langan v. Cheshire, 17443

• Decision Date: 15 May 1951
• Docket Number: No. 17443,17443
• Citation: 208 Ga. 107,65 S.E.2d 415
• Parties: LANGAN et al. v. CHESHIRE.
• Court: Georgia Supreme Court

Page 415

65 S.E.2d 415

208 Ga. 107

LANGAN et al. v. CHESHIRE.

No. 17443.

Supreme Court of Georgia.

May 15, 1951.

Rehearing Denied June 13, 1951.

Syllabus by the Court.

The judgment of the court below denying a new trial was error.

Mrs. Bertha Vaughn Cheshire, as propounder of the last will and testament of James Ross Cheshire, filed application with the Court of Ordinary of Fulton County, seeking to probate in solemn form a paper designated as 'the last will and testament' of James Ross Cheshire. The original will was dated December 17, 1947, and was typewritten. There is no question raised by anyone as to the probate of this part of the paper. There was, however, a purported codicil which was dated December 4, 1948, and was handwritten. The purported codicil reads as follows: 'As my financial situation has changed so materially since this will was drawn, I am forced to make certain changes in this will as shown by the word eliminate and signed by me. I am doing this of my own free will and accord without any influence or pressure from anyone and with a clear and sound mind. Have provided well for my children during my lifetime and my estate has shrunk so greatly, it is necessary to make these changes so as to try to provide for my wife. If anything is left of the estate on my wife's death, the provisions in the will as to the division of this remainder to my children will apply.' The codicil was signed by the testator and attested by three witnesses.

On the body of the original will, there appear in several places the words 'Eliminate' and 'J. R. Cheshire' with lines indicating the portions of the will to be eliminated. The effect of this handwritten portion is to eliminate certain provisions of the will which distribute part of the income of a trust to a sister and to the children of the testator, and to eliminate a son as a trustee under the will.

There also appear on the face of the will certain notations and obliterations. The notations consist of the words 'put back' with lines leading to encircled words, the effect of which is, apparently, to replace the son as a trustee under the will. The obliterations are lines drawn through provisions of the will relating to payment of portions of the income of the trust to the sons of J. R. Cheshire. All of these notations and obliterations are on portions of the will beside which the words 'Eliminate' and 'J. R. Cheshire' had previously been written--in other words, provisions of the will which had been incorporated in the purported codicil.

Mary Louise Cheshire, a sister of J. R. Cheshire, through next friend, J. R. Cheshire, Jr., Virginia Cheshire Langan, Richard Deery Cheshire, and James Ross Cheshire, Jr. filed a caveat to the will, contending that the codicil should not be admitted to probate as a part of the will of James Ross Cheshire, on the grounds that the codicil was indefinite and uncertain; that the changes to be made were not properly identified; that it was not shown whether the words 'Eliminate' and 'J. R. Cheshire' were written before or after the codicil was executed; that the codicil was executed under a mistake of fact, in that J. R. Cheshire believed his estate had shrunk in value when in fact it was substantially the same; that the interlineations on the will showed an intention to revoke the codicil; and that their effect was to revoke the codicil.

After a hearing, the court of ordinary passed an order admitting the will and codicil, without the alterations, to probate. The caveators appealed to the superior court, and a trial was had before a jury. After all the evidence was in, the caveators moved to exclude the purported codicil from the verdict admitting the will to probate. The motion was overruled and the caveators filed their exceptions pendente lite. The judge then directed a verdict in favor of the propounders, admitting the will to probate, including the codicil but excluding the alterations. The caveators made a motion for new trial on the general grounds, and amended by adding special grounds four through thirteen. The motion for new trial was denied, and the caveators brought their bill of exceptions to this court complaining of the rulings on the exceptions pendente lite and the judgment denying a new trial.

Poole, Pearce & Hall, and Edwin Pearce, all of Atlanta, for plaintiffs in error.

Lokey & Bowden, and Charles M. Lokey, all of Atlanta, for defendant in error.

WYATT, Justice.

1. It is not contended that the original will of James Ross Cheshire should not be admitted to probate, but the codicil is attacked on several grounds. Counsel for the plaintiff in error treat the bill of exceptions as presenting three questions for decision by this court. It will be so treated here.

The first question presented is raised by the exceptions pendente lite, the general grounds of the motion for new trial, and special grounds 4, 5, 6, 7, 8, 9, 12, and 13 of the motion for new trial, and concerns the establishment, as a part of the last will and testament of James Ross Cheshire, of a certain codicil purporting to be a part of said will.

'In a court of ordinary on an application for the probate of a will in solemn form, the sole question for determination is devisavit vel non. * * * On appeal, the jurisdiction of the superior court is limited to the merits of the same issue, and can deal with no question except such as could have been raised in the court of ordinary.' Foster v. Allen, 201 Ga. 348, 40 S.E.2d 57, 58. See also Trustees of University of Georgia v. Denmark, 141 Ga. 390, 81 S.E. 238; Cone v. Johnston, 202 Ga. 420, 43 S.E.2d 545. 'Upon the trial of an issue arising upon the propounding of a will and a caveat thereto, the burden, in the first instance, is upon the propounder of the alleged will to make out a prima facie case, by showing the factum of the will and that at the time of its execution the testator apparently had sufficient mental capacity to make it, and, in making it, acted freely and voluntarily. When this is done, the burden of proof shifts to the caveator.' Slaughter v. Heath, 127 Ga. 747, 57 S.E. 69, 70, 27 L.R.A.,N.S., 1. See also Edenfield v. Boyd, 143 Ga. 95, 84 S.E. 436; Brown v. Kendrick, 163 Ga. 149, 135 S.E. 721; Ward v. Morris, 153 Ga. 421, 112 S.E. 719.

In the instant case,...