Saliba v. Saliba, 15844

CourtSupreme Court of Georgia
Writing for the CourtBELL, Justice.
Citation44 S.E.2d 744,202 Ga. 791
PartiesSALIBA et al. v. SALIBA. SALIBA v. SAME.
Docket Number15844,15845.
Decision Date09 September 1947

Two Motions for Rehearing Denied Oct. 20, 1947. [Copyrighted Material Omitted]

Syllabus by the Court.

1. The first count of the petition as amended, to probate a copy of a lost or destroyed will, alleged that the will was destroyed before the testator's death without his knowledge or consent, while the second count alleged that it was lost or destroyed after his death. Held, that the first count stated a cause of action good against general demurrer under the law of the case as fixed by a former decision of this court in the same case.

(a) The same ruling will apply to the second count, as against the only contentions presented by the general demurrer to this count and urged in this court; but a special demurrer to one paragraph of this count, objecting that it did not actually have a copy of the will attached thereto as alleged, was good and should have been sustained.

(b) The third count, which alleged alternatively that the original will was destroyed before the testator's death without his knowledge or consent, or was destroyed subsequently to his death, but that 'for want of information [petitioner] cannot say whether the disappearance of the will occurred before or after the testator's death,' was not subject to demurrer for duplicity, in view of the allegation as to 'want of information.'

2. In every case where it is sought to have admitted to probate and record a copy of a lost or destroyed will in lieu of the original, the propounder is confronted with the presumption that the will was revoked by the testator. In such a case, declarations of the testator are admissible in evidence either to support or to rebut such presumption, although made at any time between the making of the will and heath of the testator, and although they are not shown to have accompanied any particular act of revocation or attempted revocation, their admissibility not depending on res gestae.

(a) Under this rule of evidence, the court erred, as alleged in ground 1 of the amendment to the motion for a new trial, in excluding the evidence of declarations which was offered by the defendant or caveator (the unsuccessful party in the trial court), and tended to show intentional revocation by the testator and thereby to confirm the stated presumption as to revocation.

3. The presumption of revocation may be rebutted by circumstantial as well as by direct evidence, and the facts and circumstances, the admission of evidence as to which was complained of in special grounds 2, 4, and 5, were relevant for the purpose of showing that the testator had made a will that would inure to the benefit of the plaintiff (propounder), infant child of the testator's deceased brother; and also as showing circumstances tending to illustrate the probability or improbability of his later revoking such will. Special ground 6 is controlled by this ruling. The court did not err in admitting the evidence referred to to in any of these grounds.

4. Evidence that the widow and sole heir at law of the testator was told by her husband a short time before his death that he had a will--considered with documentary evidence that within nine or ten days after his death she as sole heir at law conveyed valuable property of the estate to the testator's sister, by two deeds, one made to her individually and the other made to her as trustee for her four children and the present plaintiff--was relevant and admissible as illustrating her motion in executing such deeds; and, in the light of such evidence as to her information regarding a will, the deeds themselves, so soon executed, were admissible as tending to show a state of mind unfavorable to the will, together with a purpose to defeat it. (Special grounds 3 and 7.)

5. The court did not err, as insisted in special ground 8, in admitting in evidence a carbon copy of the purported will of the testator, over objections that the paper so offered in evidence was not complete as a will, and that there was no sufficient testimony to show what three particular persons witnessed the will.

(a) The introduction of such carbon copy tended to prove an allegation in the petition, and the copy was therefore admissible in evidence against the objections made.

(b) Furthermore, the evidence was sufficient to show what three particular persons witnessed the will.

6. The third count of the petition having been stricken, the case was tried on the first and second counts, both alleging one and the same cause of action. In these circumstances, the court did not err, as contended in special ground 9, in refusing the request of the defendant to require the plaintiff to elect upon which of these counts he would ask a verdict.

7. The charge of the court on burden of proof, preponderance of evidence, and 'clear proof,' as complained of in special ground 10, was not erroneous for any reason assigned. Special ground 11 was abandoned.

8. The charge complained of in special ground 14, wherein the jury were instructed as to the manner in which the presumption of revocation might be rebutted, was authorized by the evidence, and was not otherwise erroneous for any reason urged.

9. The protion of the charge assigned as error in special ground 15, as to the method of proving execution of an original will, was not erroneous as being inapplicable in the instant proceeding to probate an alleged copy of a will.

10. Nor, under the pleadings and the evidence, was it error, as insisted in special ground 16, to instruct the jury as to the presumption of due execution which arises from recitals to that effect in an attestation clause, the contention being that such instruction was not applicable to the probate of a copy of a lost or destroyed will.

11. The court erred, as alleged in special ground 19, in instructing the jury that, if they believed the alleged testator did not intentionally destroy his will, then the form of their verdict would be, 'We, the jury, find in favor of the will;' the error being that the case could not be concluded in favor of the plaintiff by a mere finding that the testator did not intentionally revoke his will, but, over and beyond that, it would be necessary to find that the plaintiff had clearly proved the alleged copy 'to be such.'

(a) There was no merit in any of the assignments of error in special grounds 12, 13, 17, 18, 20, and 21, complaining of other portions of the judge's charge.

12. The evidence was sufficient to authorize the verdict in favor of the plaintiff for the probate of the alleged copy of the will.

(a) Nevertheless, for the reasons stated in headnotes 2 and 11, supra, and corresponding divisions of the opinion, pointing out errors in the trial, the defendant's motion for a new trial should have been granted.

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

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

BELL Justice.

1. This is the second appearance of the instant case. See Saliba v. Saliba, 201 Ga. 577, 40 S.E.2d 511.

On March 20, 1946, George Mike Saliba II, an infant, acting by and through another an next friend, filed a petition in the court of ordinary of Terrell County, seeking to probate what was alleged to be a true copy of the last will and testament of George M. Saliba, an uncle of the plaintiff, who died a resident of Terrell County on or about March 5, 1946.

According to the allegations of the petition, the plaintiff's father, John Rogers Saliba, was named as a legatee in the will, but predeceased the alleged testator. This accounts for the interest of the plaintiff in seeking to have the alleged copy of the will probated. Code, § 113-812.

George M. Saliba died without children, leaving a widow, Mrs. Adele George Saliba, as his sole heir at law. She filed an answer or caveat, putting in issue the allegations of the petition as to the execution of a will and the correctness of the alleged copy. She also filed a demurrer. The case was appealed to the superior court, where general and special demurrers to the petition as amended were overruled, and a verdict was returned in favor of the plaintiff. This court affirmed the judgment overruling the general demurrer, but held that the judge erred in overruling one ground of special demurrer which attacked an amendment to the petition as being duplicitous, one Justice dissenting from the latter ruling, though concurring specially in the judgment or result. Saliba v. Saliba, 201 Ga. 577, 40 S.E.2d 511, supra.

On return of the case to the trial court, the plaintiff struck the amendment which had been held duplicitous, and amended the original petition so as to plead his case in three counts. Demurrers were filed to each of these counts. The court overruled all grounds of demurrer to the first and second counts, but sustained the demurrer to the third count. The plaintiff again prevailed before a jury, a general verdict being returned in his favor. The defendant's motion for a new trial as amended was overruled, and she excepted. The plaintiff by cross-bill of exceptions complained of the judgment sustaining the demurrer to the third count of his petition and striking that count.

The original petition as thus amended, and now to be treated as count 1, alleged that the will destroyed before the testator's death without his knowledge or consent; also that the will was witnesses by W. L. Ferguson and two other persons, who were either J. E. King and R. A. Hill, or Miss Annie Timmerman and R. R. Marlin, but that said will was executed and witnessed by three persons as required by law. The defendant demurred to this count upon the ground...

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22 cases
  • Saliba v. Saliba
    • United States
    • Supreme Court of Georgia
    • 9 Septiembre 1947
    ...44 S.E.2d 744SALIBA et al.v.SALIBA.SAMBA.v.SAME.Nos. 15844, 15845.Supreme Court of Georgia.Sept. 9, 1947.[44 S.E.2d 744] Two Motions for Rehearing Denied Oct. 20, 1947.[44 S.E.2d 745] [COPYRIGHT MATERIAL OMITTED][44 S.E.2d 746]Syllabus by the Court. 1. The first count of the petition as ame......
  • Savoy v. Savoy
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 4 Noviembre 1954
    ...of the other questions is required below. 3 6 Wigmore, Evidence § 1737 (3d ed.); Patterson v. Hickey, 32 Ga. 156; Saliba v. Saliba, 202 Ga. 791, 799, 44 S.E.2d 744, 751; Lawyer v. Smith, 8 Mich. 411, 423; Crampton v. Osborn, 356 Mo. 125, 137-138, 201 S.W.2d 336, 342, 172 A.L.R. 344; In re B......
  • McGrath v. Dubs, 9093
    • United States
    • United States State Supreme Court of Montana
    • 24 Abril 1953
    ...immaterial inconsistency between averments will be disregarded.' And see Peck v. Woomack, 65 Nev. 184, 192 P.2d 874, and Saliba v. Saliba, 202 Ga. 791, 44 S.E.2d 744. This court has likewise sanctioned this practice. Wilson v. Milner Hotels, Inc., 116 Mont. 424, 154 P.2d 265; Fitzgerald v. ......
  • Waldrop v. Bettis
    • United States
    • Supreme Court of Georgia
    • 20 Octubre 1967
    ...different theories of his cause of action, and ordinarily he is not required to elect on which count he will rely. Saliba v. Saliba, 202 Ga. 791, 806, 44 S.E.2d 744. The theory on which the petitioners relied in the first count was not repugnant to the cause of action pleaded in the second ......
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