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Probate of will. Before Judge Hendrix. Fulton Superior Court. December 8, 1950.
WYATT, Justice.
The judgment of the court below denying a new trial was error.
Mrs. Bertha Vaughan Cheshire, as propounder of the last will and testament of James Ross Cheshire, filed application with the Court of Ordinary of Fulton County seeking to probate in solemn form a paper designated as "the Last Will and Testament" of James Ross Cheshire. The original will was dated December 17, 1947, and was typewritten. There is no question raised by anyone as to the probate of this part of the paper. There was, however, a purported codicil which was dated December 4, 1948, and was handwritten. The purported codicil reads as follows: "As my financial situation has changed so materially since this will was drawn, I am forced to make certain changes in this will as shown by the word eliminate and signed by me. I am doing this of my own free will and accord without any influence or pressure from anyone and with a clear and sound mind. Have provided well for my children during my lifetime and my estate has shrunk so greatly, it is necessary to make these changes so as to try to provide for my wife. If anything is left of the estate on my wife's death, the provisions in the will as to the division of this remainder to my children will apply." The codicil was signed by the testator and attested by three witnesses.
On the body of the original will, there appear in several places the words "Eliminate" and "J. R. Cheshire" with lines indicating the portions of the will to be eliminated. The effect of this handwritten portion is to eliminate certain provisions of the will which distribute part of the income of a trust to a sister and to the children of the testator, and to eliminate a son as a trustee under the will.
There also appear on the face of the will certain notations and obliterations. The notations consist of the words "put back" with lines leading to encircled words, the effect of which is, apparently, to replace the son as a trustee under the will. The obliterations are lines drawn through provisions of the will relating to payment of portions of the income of the trust to the sons of J. R. Cheshire. All of these notations and obliterations are on portions of the will beside which the words "Eliminate" and "J. R. Cheshire" had previously been written in other words, provisions of the will which had been incorporated in the purported codicil.
Mary Louise Cheshire, a sister of J. R. Cheshire, through next friend, J. R. Cheshire Jr., Virginia Cheshire Langan, Richard Deery Cheshire, and James Ross Cheshire Jr. filed a caveat to the will, contending that the codicil should not he admitted to probate as a part of the will of James Ross Cheshire, on the grounds that the codicil was indefinite and uncertain; that the changes to be made were not properly identified; that it was not shown whether the words "Eliminate" and "J. R. Cheshire" were written before or after the codicil was executed; that the codicil was executed under a mistake of fact, in that J. R. Cheshire believed his estate had shrunk in value when in fact it was substantially the same; that the interlineations on the will showed an intention to revoke the codicil; and that their effect was to revoke the codicil.
After a hearing, the court of ordinary passed an order admitting the will and codicil, without the alterations, to probate. The caveators appealed to the superior court, and a trial was had before a jury. After all the evidence was in, the caveators moved to exclude the purported codicil from the verdict admitting the will to probate. The motion was overruled and the caveators filed their exceptions pendente lite. The judge then directed a verdict in favor of the propounders, admitting the will to probate, including the codicil but excluding the alterations. The caveators made a motion for new trial on the general grounds, and amended by adding special grounds four through thirteen. The motion for new trial was denied, and the caveators brought their bill of exceptions to this court complaining of the rulings on the exceptions pendente lite and the judgment denying a new trial.
1. It is not contended that the original will of James Ross Cheshire should not be admitted to probate, but the codicil is attacked on several grounds. Counsel for the plaintiff in error treat the bill of exceptions as presenting three questions for decision by this court. It will be so treated here.
The first question presented is raised by the exceptions pendente lite, the general grounds of the motion for new trial, and special grounds 4, 5, 6, 7, 8, 9, 12, and 13 of the motion for new trial, and concerns the establishment, as a part of the last will and testament of James Ross Cheshire, of a certain codicil purporting to be a part of said will.
"In a court of ordinary on an application for the probate of a will in solemn form, the sole question for determination is devisavit vel non . . . On appeal, the jurisdiction of the superior court is limited to the merits of the same issue, and can deal with no question except such as could have been raised in the court of ordinary." Foster v. Allen, 201 Ga. 348 (40 S. E. 2d, 57). See also Trustees of the University of Georgia v. Denmark, 141 Ga. 390 (81 S. E. 238); Cone v. Johnston, 202 Ga. 420 (43 S. E. 2d, 545). "Upon the trial of an issue arising upon the propounding of a will and a caveat thereto, the burden, in the first instance, is upon the propounder of the alleged will to make out a prima facie case, by showing the factum of the will, and that at the time of its execution the testator apparently had sufficient mental capacity to make it, and, in making it, acted freely and voluntarily. When this is done, the burden of proof shifts to the caveator." Slaughter v. Heath, 127 Ga. 747 (9) (57 S. E. 69, 27 L.R.A. (N. S.) 1). See also Edenfield v. Boyd, 143 Ga. 95 (84 S. E. 436); Brown v. Kendrick, 163 Ga. 149 (135 S. E. 721); Ward v. Morris, 153 Ga. 421 (112 S. E. 719).
In the instant case, the propounders properly proved the original will. As to this there is no dispute. The propounders then introduced the witnesses to the codicil. Two testified in person. The testimony of one, who was in military service, was introduced by stipulation. This testimony, in substance, established the fact that the codicil had been properly executed and attested. The witnesses testified further that Mr. Cheshire was apparently of sound mind when the codicil was executed, and that none of the witnesses saw any of the will except the page on which his signature appears. Therefore, under the rules above stated, the propounders have made a prima facie case entitling the codicil to probate as a part of the last will and testament of J. R. Cheshire, and the burden shifted to the caveators to prove the grounds of their caveat.
The caveators contend that the codicil is not entitled to probate, for the reasons that the codicil does not identify the words "Eliminate" and "J. R. Cheshire"; that the codicil does not in any way indicate the changes to be made; that it is impossible to tell how many eliminations were intended or at what places they were to occur; that there was no evidence to show that James Ross Cheshire wrote the words "Eliminate" and "J. R. Cheshire"; and that, admitting that Mr. Cheshire wrote the words "Eliminate" and "J. R. Cheshire," there was no evidence to show whether the words were written before or after the codicil was executed. The propounders having made out a prima facie case entitling the codicil to probate as a part of the last will and testament of James Ross Cheshire, if there were any reasons why it should not be so admitted, the burden was upon the caveators to show them. The burden was therefore upon the caveators to show which, if any, of the changes indicated were not intended; which, if any, of the changes were not made by the testator; and which, if any, of the changes, though made by the testator, were not made before the codicil was executed. This they have not done. We therefore must hold that, as against this attack, the codicil was entitled to probate.
2. The second question presented for decision arises under special ground 11 of the motion for new trial, in which it is contended that the codicil was executed under a mistake of fact, and that this mistake of fact accompanied by a weak and depressed state of mind caused the changes to be made in the will which were prejudicial to the caveators. The mistake of fact which is alleged to have occurred is that the testator believed his estate had so shrunk from December, 1947, the date of the will, to December, 1948, the date of the codicil, that the changes were necessary to provide for his wife, when in fact his estate was substantially the same.
In so far as the evidence as to the physical and mental condition of the testator is concerned, it is necessary only to say that nothing was made to appear which could entitle the caveators to the relief they seek.
This evidence of the caveators is itself sufficient to show that the testator was not mistaken as to the decline in value of his estate, but that as a matter of fact his estate had decreased substantially in value. Therefore, even if a mistake of fact such as is alleged here were a sufficient ground to refuse a will to probate--and we do not intend to intimate that it is--under the caveators' own evidence, there was no mistake of fact in this case.
3. The third question presented for decision is whether or not certain alterations and obliterations show an intent to revoke and have the effect of revoking the codicil here attacked. The Code, 113-404, provides: "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 is immaterial, such as the seal, no such presumption shall arise." "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 . . . As a general rule, the burden is on a person attacking a paper offered for probate as a will to sustain the grounds of his attack. But by express provision of our statute, 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." McIntyre v. McIntyre, 120 Ga. 67 (2), 70 (47 S. E. 501, 102 Am. St. R. 71, 1 Ann. Cas. 606).
The will in the instant case is admitted by both sides to have been altered. The alterations appear on the face of the will, and on portions of the will which have previously been incorporated in the codicil. They are, of course, material as regards the codicil, since they concern the very purpose and subject matter of the codicil. The materiality of an alteration is a question of law. Code, 20-803. There is not one particle of evidence in the record in this case regarding the interlineations and obliterations that appear on the will. They are not mentioned in the testimony of either side. They were simply ignored at the trial. Therefore the presumptions above referred to not only arise, but stand unrebutted. If the alterations and obliterations were not intended as a revocation of the codicil, the burden was on the propounders to show that fact. They have not attempted to do so. Under these circumstances, we must hold that the judgment of the court below denying a new trial was error. As to the question of revocation of a will by cancellation or obliteration generally, see Morris v. Bullock, 185 Ga. 12 (194 S. E. 201, 115 A.L.R. 700); Ellis v. O'Neal, 175 Ga. 652 (165 S. E. 751); Hartz v. Sobel, 136 Ga. 565 (71 S. E. 995).
Judgment reversed. All the Justices concur.
Lokey & Bowden and Charles M. Lokey, contra.
Poole, Pearce & Hall, for plaintiffs in error.
Saturday May 23 05:28 EDT

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