Mosely v. Carr

• Decision Date: 28 February 1883
• Citation: 70 Ga. 333
• Parties: Mosely et al. vs. Carr et al., administrators.
• Court: Georgia Supreme Court

70 Ga. 333

Mosely et al. vs. Carr et al., administrators.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1883.

Wills. Witness. Equity. Injunction. Before Judge Simmons. Bibb County. At Chambers. January 9, 1883.

The following extract from the decision of Judge Simmons sufficiently reports the case: "The bill alleges that one W. A. Evans died, leaving a will, by which he gave to the complainants all of his property; that the will has been lost or destroyed; that he is seeking to establish a copy of the will in the court or ordinary; that two of the witnesses have made affidavits of the execution of the will, and that the third witness, one Summerlin, had promised to make an affidavit, but had been deterred from so doing by respondents, and had now refused to make said affidavit, but had made one that he had not witnessed the execution of any such will as alleged by complainants. The bill further alleges that Carr and Evans had taken out letters of administration upon said estate, and had sold the personal property, and had advertised the realty, and would divide the proceeds among the heirs at law, who were insolvent; and that the administrators were insolvent. The bill prays for an injunction to restrain said administrators from selling said property and dividing the proceeds until a hearing could be had upon the application to establish the lost will. The respondents filed a demurrer to the bill, and also answered, denying all the material allegations therein."

The chancellor dissolved the restraining order, discharged the temporary receiver who had been appointed, and refused the injunction. Complainants excepted.

Sam H. Jemison, for plaintiff in error.

G. T. & C. L. Bartlett, for defendants.

Crawford, Justice.

The single question presented by the record in this case is whether, under a proper construction of section 2431 of the Code, the devisee or executor of a will alleged to have been lost, is bound to produce, and prove by all the subscribing witnesses thereto, if to be had, the existence of such will, before a copy can be established.

That section is in the following words: " If a will be lost or destroyed subsequent to the death, or without the consent of the testator, a copy of the same, clearly proved to be such by the subscribing witnesses and other evidence, may be admitted to probate and record, in lieu of the original; but in every such case the presumption is of revocation by the testator, and that presumption must be rebutted by...