Porch v. Farmer

• Decision Date: 18 April 1924
• Docket Number: 3853.
• Citation: 122 S.E. 557,158 Ga. 55
• Parties: PORCH v. FARMER.
• Court: Georgia Supreme Court

122 S.E. 557

158 Ga. 55

PORCH v. FARMER.

No. 3853.

Supreme Court of Georgia

April 18, 1924

Syllabus by the Court.

The general rule is that, where one files a caveat to a paper offered for probate as a will, the burden of proof is on the caveator to sustain the grounds of his caveat.

"Where a paper found among a decedent's papers is offered for probate as a will and appears to have been canceled or obliterated in a material part, a presumption arises that the cancellations or obliterations were made by the deceased, and that he intended them to operate as a revocation." Accordingly, where it is shown that the paper offered as a will for probate, which had been mutilated in material parts had been in the custody of the deceased up to the time of her death, the propounder was met with the presumption just stated.

"Joint operation of act and intention is necessary to revoke a will."

Applying the foregoing rules to the facts of this case, the propounder did not overcome by evidence the presumption against him; and consequently the verdict of the jury in favor of the propounder was without evidence to support it.

In view of the foregoing ruling, holding that the presumption that the alleged testator had mutilated the will herself had not been overcome by the evidence, it was error to submit that issue to the jury.

Error from Superior Court, Coweta County; C. E. Roop, Judge.

Petition by T. G. Farmer, Jr., to probate the will of Mrs. Celia R Seay, deceased, wherein J. R. Porch filed a caveat. Judgment for propounder, and caveator brings error. Reversed.

W. L Stallings, of Newnan, and W. R. Jones, of Greenville, for plaintiff in error.

T. G Farmer, Jr., of Newnan, for defendant in error.

HILL, J. (after stating the facts as above).

The controlling question under the evidence in the case is whether the paper offered by the executor as propounder of the purported will of Mrs. Celia R. Seay was so mutilated by her before her death as to amount to a revocation of the will, or whether it was done by some one else, and whether the will as originally executed should be set up and established as the will of the testatrix.

The general rule is that the burden of proof is upon the person attacking a paper offered for probate as a will to sustain the grounds of his caveat. But our Civil Code provides (section 3919) that--

"An express revocation may be effected by any destruction or obliteration of the original will, or a duplicate, done by the testator, or by his direction, with an intention to revoke; such intention will be presumed from the obliteration or canceling of a material portion of the will; but if the part canceled be immaterial, such as the seal, no such presumption arises."

In all cases of revocation the intention to revoke is necessary to make it effectual. Civil Code 1919, § 3920.

It thus appears that where a will has been canceled or obliterated in a material part, a presumption of revocation arises, and the burden is on the propounder to show that no revocation was intended. In McIntyre v. McIntyre, 120 Ga. 67, 47 S.E. 501, 102 Am.St.Rep. 71, 1 Ann.Cas. 606, it was ruled as follows:

"Where a paper found among a decedent's papers is offered for probate as a will, and appears to have been canceled or obliterated in a material part, a presumption arises that the cancellations or obliterations were made by the deceased and that he intended them to operate as a revocation." Also: "Joint operation of act and intention is necessary to revoke a will."

In a note to Graham v. Burch, 28 Am.St.Rep. 339 (47 Minn. 171, 49 N.W. 697), it is said that--

"It has been held that if a will, though found in a tin box belonging to the testator, has its seal torn off and his name and the names of the attesting witnesses obliterated, a presumption of its revocation arises which cannot be overcome by proving a conversation between the executor and the testator shortly before the death of the latter, with respect to fulfilling a bequest made in the will. In re White, 25 N.J.Eq. 501."

In the same case in discussing the question of presumptions arising from mutilation, the same author says:

"The tearing, obliterating, or mutilating of a will, or some portion thereof, may, of course, be done after as well as before the testator's death, and by another person as well as by him, and the danger always exists that it may have been done by some other person, if any one besides the testator had access to the will and an opportunity to obliterate or mutilate it. But after the death of the testator there is rarely any evidence accessible to show when or how the will came to be in the condition in which it was found, and the law

must therefore indulge the presumption that such evidence of mutilation or obliteration as it bears resulted from the testator's act done with revocatory intent, or it must deny all effect of such evidence, except when it is aided and supplemented by other means of proof. In this dilemma, the courts have adopted the rule that when a will was in the custody of the decedent, and is found after his death bearing upon it evidence of such acts of mutilation or of obliteration as are requisite and sufficient to revoke it, its condition will be presumed to have been the work of the testator, done with intent to effect its revocation. This presumption must prevail, unless overcome by satisfactory and competent evidence: In Goods of Dallow, 31 L. J. P. & D. 128; Elms v. Elms, 1 Swab. & T. 155; 4 Jur., N. S., 765; 27 L. J. P. & D. 96; Wolf v. Bollinger, 62 Ill. 368; Succession of Muh, 35 La. Ann. 394, 48 Am.Rep. 242."

The question therefore arises: Has the presumption raised by reason of the fact that the will was found in the possession of testatrix at the time of her death, mutilated in material parts, been overcome by the evidence produced by the propounder that the mutilations were caused by others than the testatrix herself? The propounder, in order to overcome this presumption, offered the evidence of the three witnesses to the will, showing that the testatrix executed the will after it had been read to her, in which she had devised the bulk of her estate to her afflicted nephew, Willie Brittain that the testatrix stated to all of these witnesses that she wanted her nephew to have her property; that the will was freely and voluntarily made, etc. The propounder, T. G. Farmer, Jr., who is a lawyer and the nominated executor of the alleged will, testified that Mrs. Seay sent for him to write her will, which he did, and after it was properly executed she gave him the will to put...