Nassau v. Sheffield

• Decision Date: 11 October 1954
• Docket Number: 18705,Nos. 18704,s. 18704
• Citation: 84 S.E.2d 4,211 Ga. 66
• Parties: Elease NASSAU et al. v. Robert SHEFFIELD et al. Frances SHEFFIELD et al. v. Stafford SHEFFIELD et al.
• Court: Georgia Supreme Court

Page 4

84 S.E.2d 4

211 Ga. 66

Elease NASSAU et al. v. Robert SHEFFIELD et al.

Frances SHEFFIELD et al. v. Stafford SHEFFIELD et al.

Nos. 18704, 18705.

Supreme Court of Georgia.

Oct. 11, 1954.

Case No. 18074.

Sapp & Flexer, Brunswick, Thomas & Thomas, Jesup, Thomas E. Spell, Kingsland, for plaintiff in error.

G. B. Cowart, Reese, Bennet & Gilbert, Gowen, Conyers, Fendig & Dickey, Brunswick, for defendant in error.

Case No. 18075.

Gowen, Conyers, Fendig & Dickey, Brunswick, B. R. Martin, Jr., Woodbine, for plaintiff in error.

Reese, Bennet & Gilbert, G. B. Cowart, Sapp & Flexer, Brunswick, Thomas & Thomas, Jesup, Thomas E. Spell, Kingsland, for defendant in error.

Syllabus Opinion by the Court

HAWKINS, Justice.

Herbert Forsyth Sheffield died a resident of Camden County, Georgia. His widow, Mrs. Frances Sheffield, and one of his sons, Robert W. Sheffield, who will hereinafter be referred to as propounders, offered for probate in solemn form in Camden Court of Ordinary a paper which they alleged to be his will. Stafford Sheffield, his sisters, and certain other heirs at law of the testator, who will hereinafter be referred to as cross-propounders, filed a caveat and cross-petition, in which they denied that the paper offered by the propounders was in fact the true last will and testament of Herbert F. Sheffield. They alleged that the last page of the purported will presented by the propounders, which contains only the date of execution, the signature of Herbert F. Sheffield thereto by his mark, and the attestation clause, with the signatures of the three witnesses thereto affixed, is the last page of the writing executed by Herbert F. Sheffield as his last will and testament on the date shown thereon, February 5, 1949, and that items 1 through 7 of said purported will are identical in all respects with the same items contained in the true original will actually executed by the testator; but alleged further that the said writing as originally executed by the testator contained other items which are not contained in the purported will presented by the propounders; that these items, which are set out in an exhibit to the caveat, where deleted and eliminated from the writing executed by Herbert F. Sheffield as his last will and testament subsequently to the execution of said writing by him without his knowledge or consent, by a person or persons unknown to the cross-propounders, and prior to the death of the testator; that the testator executed only one writing as his last will and testament before the persons whose names are signed thereto as attesting witnesses, and the writing then and there executed by him contained several items which the purported will presented for probate did not contain, and the writing so presented by them for probate contains items which the writing executed by the testator did not contain; that these changes in said writing were made subsequently to the execution thereof by the testator by persons unknown to the cross-propounders and without the knowledge or consent of the testator, and prior to his death, and, therefore, the writing presented by the original propounders for probate is not in fact the true last will and testament of the testator as executed by him; and that the writing executed by the testator was by persons unknown changed by withdrawing, deleting, or despoiling the items originally in said will numbers 8 through 17, as shown by exhibit 'A' to the caveat, and by eliminating from item 16 thereof the names of Kathaleen Sheffield Pounds and John C. Newton as executors and by substituting therefor the name of Robert W. Sheffield, who was not named as an executor in said item before it was changed. They further alleged that they presented to the court for probate in solemn form a copy of what they contend to be the true last will and testament of Herbert Forsyth Sheffield, as shown by exhibit 'A' attached to the caveat and cross-petition, the original of which, except the last page thereof containing the date of execution, the signature of Herbert F. Sheffield thereto by his mark, and the attestation clause with the signatures of the three subscribing witnesses thereto affixed, has been lost or destroyed by parties unknown to these cross-propounders prior to the death of the testator, without his knowledge or consent; and they pray: (a) that the writing offered for probate as the last will and testament of Herbert Forsyth Sheffield by Mrs. Frances Sheffield and Robert W. Sheffield be denied probate as such; (b) that the said Herbert Forsyth Sheffield be declared to have died intestate insofar as the writing presented for probate by the original propounders is concerned; and, as cross-propounders, prayed that the copy of the aforesaid writing attached to the caveat as exhibit 'A', the original of which was signed by the testator as his last will and testament, be admitted to record and probated in solemn form.

Certain other heirs of Herbert F. Sheffield, who will hereinafter be referred to simply as caveators, filed their separate caveats, in which they alleged that neither of the purported wills offered for probate was the true last will and testament of Herbert F. Sheffield and, among other things, alleged that, even if Herbert F. Sheffield signed and executed a will on February 5, 1949, both purported wills had been so changed before or after his death, without his knowledge, as to make them forged instruments and void; that the purported copy of the said purported original will sought to be probated by the cross-propounders, Stafford Sheffield et al., is not the copy of any will made by Herbert F. Sheffield on February 5, 1949, for the reason that said purported copy of said purported will seeks to set up as items imaginary suppositions, conclusions, and opinionative matter, and items that make the said purported copy of said purported will a nullity and of no effect, and same does not set forth the testamentary intentions of the said Herbert Forsyth Sheffield; and they prayed that neither of the purported wills be probated.

While some of the caveators alleged that the wills offered for probate were forgeries, in that they were never signed, published, or declared by the testator as his...