Saliba v. Saliba

• Citation: 40 S.E.2d 511,201 Ga. 577
• Decision Date: 14 November 1946
• Docket Number: 15644.
• Parties: SALIBA v. SALIBA.
• Court: Supreme Court of Georgia

40 S.E.2d 511

201 Ga. 577

SALIBA v. SALIBA.

No. 15644.

Supreme Court of Georgia

November 14, 1946

Syllabus by the Court.

1. 'If a will shall be destroyed without the consent of the testator, or shall be lost or destroyed subsequent to the death 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 proof.' Code, § 113-611.

2. A petition which seeks to establish a copy of a lost will, under the provisions of the Code, § 113-611, and which in one count alleges in the alternative both of the alternative theories, that the will was destroyed without the consent of the testator during his lifetime, or that it was lost or destroyed subsequent to the death of the testator and which fails to allege any facts showing the manner of the loss by which the actual intent of the pleader could be ascertained--while not subject to general demurrer, since duplicity can be taken advantage of only by special demurrer and since either one of these alternative theories would set out a good cause of action--is, however, subject to special demurrer specifically pointing out that the pleading is duplicitious and that the allegations are stated in the alternative, and setting forth that the defendant is entitled to know, and asking that the plaintiff be required to state, on which of the two inconsistent theories the plaintiff relies.

3. The court having erroneously overruled the special demurrer to the petition, and thus having refused to make the petitioner elect as to which of two alternative and inconsistent theories his case was grounded upon, all subsequent proceedings became nugatory.

H. A. Wilkinson, W. L. Ferguson, and R. R. Jones, all of Dawson, for plaintiff in error.

Leonard Farkas and Walter H. Burt, both of Albany, for defendant in error.

JENKINS Presiding Justice.

This court has repeatedly ruled that the defect of duplicity in pleadings can be taken advantage of only by special demurrer. Johnson v. Edwards, 147 Ga. 438, 94 S.E. 554; Waldrup v. Central of Ga. Ry. Co., 127 Ga. 359, 56 S.E. 439; Citizens' & Southern Bank v. Union Warehouse & Compress Co., 157 Ga. 434, 456, 122 S.E. 327; Elrod v. Anchor Duck Mills, 50 Ga.App. 531, 534, 179 S.E. 188. The special demurrer in the instant case complains both that the petition is duplicitous, and that the two inconsistent allegations are set forth only in the alternative. While this court appears to have sometimes dealt with cases involving alternative pleading as though the defect was somewhat different in character from strict and technical duplicity (Groover v. Savannah Bank & Trust Co., 186 Ga. 476, 478, 198 S.E. 217), the two defects are at least so nearly akin that pleadings defective as being stated in the alternative can fairly be so treated as duplicitous.

See Pitts v. Smith, 108 Ga. 37, 40, 33 S.E. 814, 815, where this court said: 'At best, then, the petition has the vice of uncertainty, and it is the kind of uncertainty which is the equivalent of duplicity.' So far as the present case is concerned, the defendant demurs specially to the petition as being duplicitous, and also as stating its allegations only in the alternative. In view of the rule that the vice of duplicity, or alternative pleadings can be reached only by special demurrer, the petition was not bad as against general demurrer, since either of the two alternative theories set forth was good in substance. The facts having been stated only in alternative, had either of the two theories been insufficient, a different rule would apply, and the petition would not in that event have been good even as against general demurrer (Doyal v. Russell, 183 Ga. 518(5), 189 S.E.32; Groover v. Savannah Bank & Trust Co., 186 Ga. 476(2), 478, 198 S.E. 217, supra); this, on the theory that pleadings must be construed most strongly against the pleader, and since neither theory is specifically presented as being the one on which a recovery is sought, the petition taken as a whole would be construed according to the weaker of the two alternative theories set forth.

We think, however, that the special demurrer was good. In Wood v. Achey, 147 Ga. 571(1), 94 S.E. 1021, this court said: 'In a proceeding under this law [Code, § 113-611], it is material whether the original was lost subsequently to the death or destroyed without the consent of the testator during his life; and a petition to establish and probate a copy of an alleged original under the provisions of Code section cited, which does not allege whether the will was lost after the death of the testator, or that it was destroyed during his life without his consent and does not allege any facts showing the manner of the loss or destruction of the original, is subject to demurrer.' (Italics ours.) It is true that in the Wood case, an examination of the record discloses that in that case the petition merely set forth that the will had been lost or destroyed and could not be produced, and therefore the petition was manifestly subject to even general demurrer since, so far as the petition went, the will might even have been destroyed by or with the consent of the testator. The court in its ruling, however, laid down what appears to be a plain specific and correct rule to the effect that it is important to allege whether the alleged will was destroyed before or after the death of testator, and that consequently a petition framed in one count, which fails to take one position or the other, is subject to special demurrer. It is only under the provisions of the Code section quoted in the first headnote that an action of the character here involved can be maintained. Godwin v. Godwin, 129 Ga. 67, 58 S.E. 652. Not only does the Wood case furnish authority for the rule that it is important to know which of the two theories is relied on; but the rule there announced can be sustained by sound reason. Different principles of law are involved. It is true enough, as set forth by the Code, and as recognized by this court in Scott v. Maddox, 113 Ga. 795, 798, 39 S.E. 500, 501, 84 Am.St.Rep. 263, that 'When a will cannot be found after the death of the testator, there is a strong presumption that it was destroyed or revoked by the testator himself, and this presumption stands in the place of positive proof. He who seeks to establish a lost or destroyed will assumes the burden of overcoming this presumption by adequate proof. It is not sufficient for him to show that persons interested to establish intestacy had an opportunity to destroy the will. He must go further, and show by facts or circumstances that the will was actually fraudulently or accidentally lost or destroyed, against, and not in accordance with, the wishes and intention of the testator.' But it is also true, as was shown by this court in Harris v. Camp, 138 Ga. 752(3), 76 S.E. 40, that while the Code, § 113-611, is awkwardly expressed, the rule is that such a universal presumption may be rebutted in a number of ways: First, by proof that the will was lost or destroyed subsequently to the death of the testator--when this is done the presumption of revocation is ipso facto destroyed, since a dead man can not destroy and therefore will not be presumed to have destroyed a will which is shown to Bank & Trust Co., 186 Ga. 476, 478 have been in existence after he died; or Second, the presumption of revocation may be overcome by showing that the will was destroyed prior to his death, provided however it be also shown, for example, that the testator did not have possession of the instrument after its execution, or that while the will was still in existence he had lost his testamentary capacity to annul the same, and that such mental incapacity continued up to the time of his death. Whether any of these varied and conflicting theories might be proven under a mere general allegation that the alleged will was destroyed without the consent of the testator--even though the defendant should by timely special demurrer insist that he be put on notice as to which of the two theories authorized by the Code constitutes the real ground of the plaintiff's contention--is a question not presented by the record in the present case, since such is not the allegation. But, without making any decision on pleadings other than as actually presented, it might be remarked that, if under such a mere general allegation either inconsistent theory of recovery authorized by the Code could be shown--that is, that the probata would in either event correspond to the allegata--then it might seem necessarily to follow that such a general allegation itself must be taken to include both of the contradictory theories; and if so, that would not be permissible, as against special demurrer. But, as remarked, such a question is not before us, for here the plaintiff does not confine himself to any such general allegation, but has attempted to split up the different but contradictory theories which he might have under the Code section, by claiming the benefit of each, but without actually alleging either, since he merely claims one or the other in the alternative without saying which--therefore without claiming either. As was recently sand by this court in Peterson v. Lott, 200 Ga. 390, 37 S.E.2d 358, 361: 'Any pleading that contains material allegations of fact which are self-contradictory necessarily violates two general rules of pleading--first, in that one or the other of such allegations must be untrue; and second, in that the two together leave it uncertain as to which of them, if either, is in fact true.' We do not mean however to hold that, if the...