Scott v. Maddox

• Citation: 113 Ga. 795,39 S.E. 500
• Parties: SCOTT. v. MADDOX et al.
• Decision Date: 18 July 1901
• Court: Supreme Court of Georgia

39 S.E. 500

113 Ga. 795

SCOTT.

v.MADDOX et al.

Supreme Court of Georgia.

July 18, 1901.

LOST WILL—ESTABLISHMENT—EXECUTION— REVOCATION—EVIDENCE—ASSIGNMENTS OF ERROR.

1. While in a proceeding to establish a lost will the execution of the will must be proved by the three subscribing witnesses, as in an application for the probate of a will in solemn form, the destruction or loss of the will, and the facts necessary to rebut the presumption of revocation by the testator, may be proved by other evidence.

2. "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."

3. On the trial of an application for the probate of a copy of an alleged lost will, the declaration of an heir of the decedent to the effect that an original will had existed, and that she had destroyed the same, is not, unless the declarant be a party to the proceeding, admissible in evidence in favor of the propounders. Under such circumstances the declaration is mere hearsay. Were the heir a party, it might be admissible as an admission binding upon her.

4. An exception to a refusal to allow a witness to answer a specified question presents no assignment of error with which this court can deal, when it does not appear what answer was expected. This is essential in order that the relevancy and materiality of the question may be passed upon.

(Syllabus by the Court.)

Error from superior court, Dekalb county; J. S. Candler, Judge.

Petition by W. E. Varner for the probate of a lost will. H. E. McKee and others were made parties. On death of petitioner, Janie C. Scott and Sarah Murphy were made petitioners. Judgment denying application, and petitioners bring error. Affirmed.

J. N. Glenn, H. C. Jones, and Green & McKinney, for plaintiffs in error.

Candler & Thomson, for defendant in error.

COBB, J. Varner filed a petition In the court of ordinary, alleging that Ezekiel Reeves had departed this life testate, and that his last will was destroyed subsequently to his death, and praying that a copy of the will be established and admitted to record. To this petition certain persons, describing themselvesas the heirs at law of Ezekiel Reeves, filed a caveat, setting up that at the time of the execution of the alleged will the testator was not of sound mind, that in executing the paper he acted under the undue influence of Varner, and that the failure to find the paper was due to the fact that the testator had destroyed it with the intention of revoking it. The court of ordinary refused to admit to record the paper alleged to be a copy of the will, and the case was appealed to the superior court. On the trial there, at the conclusion of the evidence introduced by the propounded, the court passed an order dismissing the appeal and sustaining the judgment of the curt of ordinary. This judgment was reversed by the supreme court, and a new trial ordered. Scott v. McKee, 105 Ga. 256, 31 S. E. 183. While the case was pending in the supreme court, Varner died, and two of the legatees under the alleged will were made parties in this court in his place. When the case came on for trial a second time in the superior court after the introduction of the testimony in behalf of the propounders, the court held that the evidence was insufficient to authorize the establishment of the paper as the last will of Ezekiel Reeves, and entered a judgment denying the application to probate the copy will, and refusing to allow it to be admitted to record. The case is here again upon a bill of exceptions containing assignments of error upon the ruling just referred to, and upon other rulings made during the progress of the trial.

1, 2. The Code declares: "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 proof." Civ. Code, § 3289. It seems that there is nothing in this statute which is in conflict with the general rule on the subject therein dealt with, but that it is merely declaratory of the law as it stood at the time of the adoption of the Code. See Pritch. Wills, § 50, p. 51, note 3. In Kitchens v. Kitchens, 39 Ga. 168, the section of the Code just quoted was construed, and it was there held that, while the execution of the will must be proven by the three subscribing witnesses in the same manner as in the probate of a will in solemn form, the contents of the paper, the destruction or loss of the same, and the facts necessary to rebut the presumption of revocation by the testator, might be shown by any other evidence which would...