Looney v. Looney

199 Ga. 415

• Court: Supreme Court of Georgia
• Decided: May 12, 1945
• Docket: No. 15139
• Status: Published

Opinion

Jenkins, Presiding Justice.

Pretermitting any decision upon the question as to whether or not, under the Code, § 113-611, in propounding for . probate an alleged copy of a will claimed to have been lost or destroyed after the death of the testator, it is necessary not only to produce hut to prove its execution by all three of the alleged subscribing witnesses who may be in life and available, or whether the same rule would apply as to the probate in solemn form of an existing will (see, in this connection as relating to a lost will, Kitchens v. Kitchens, 39 Ga. 168, 99 Am. D. 453; Mosely v. Carr, 70 Ga. 333; Scott v. Maddox, 113 Ga. 795, 39 S. E. 500, 84 Am. St. R. 263; and, as relating to an existing will, Crutchfield v. McCallie, 188 Ga. 833 (2), 5 S. E. 2d, 33; Brock v. Brock, 140 Ga. 590 (2), 79 S. E. 473; Bowen v. Neal, 136 Ga. 859, 861, 72 S. E. 340; Gillis v. Gillis, 96 Ga. 1 (2), 23 S. E. 107, 30 L. R. A, 143, 51 Am. St. R. 121; Hall v. Hall, 18 Ga. 40 (2)), in the instant case the record contains the evidence by which the propounders sought to show that the alleged lost will continued in existence up to the time of the testator’s death, and thus to rebut the strong presumption of its revocation in the event the will ever in fact existed. On this question, even were it to be assumed that the evidence submitted, together with that offered, to show the execution and contents of the will, was conclusive in the propounders’ favor on these questions — even then, and under such an assumption, the evidence introduced and the evidence offered was wholly insufficient to negative the strong presumption of law that the will had been revoked. A verdict was demanded in favor of the caveators on that question, and therefore the court did not err in directing a verdict in their favor and against the propounders. See, in this connection, Lyons v. Bloodworth, 199 Ga. 44 (1 a) (33 S. E. 2d, 314); Wood v. Achey, 147 Ga. 571 (3, 4) (94 S. E. 1021); Harris v. Camp, 138 Ga. 752 (3) (76 S. E. 40); Scott v. Maddox, 113 Ga. 795 (2) (39 S. E. 500, 84 Am. St. R. 263) ; Moseley v. Evans, 72 Ga. 203 (3).

No. 15139. May 12, 1945. Rehearing denied June 7, 1945.

Judgment afib'med.

All the Justices concur. Barry Wright and Leon & Bean Covington, for plaintiffs. Lanham & Parlcer, for defendants.