Woodruff v. Woodruff

Supreme Court of Georgia

Woodruff v. Woodruff

187 S.E. 391, 182 Ga. 895, 1936 Ga. LEXIS 591

CourtSupreme Court of Georgia

DecidedJuly 16, 1936

DocketNo. 11220

StatusPublished

Cited by3 cases

This text of 187 S.E. 391 (Woodruff v. Woodruff) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Woodruff v. Woodruff, 187 S.E. 391, 182 Ga. 895, 1936 Ga. LEXIS 591 (Ga. 1936).

Pincite

Opinion

Atkinson, Justice.

This was a proceeding to probate an alleged copy of a will, it being alleged, (a) that the original was destroyed without the consent of the testatrix; (b) that its destruction was induced by fraud and undue influence exerted upon the testatrix by a named heir at law; and (c) that the testatrix was insane at the time of its destruction. A caveat was filed, and upon a trial in the superior court, after an appeal from the court of ordinary, the court ordered a nonsuit. To this judgment the plaintiff excepted. The alleged copy purported to give all of the property of the testatrix, both real and personal, without restriction or limitation, to named devisees, who were minor nieces of the testatrix, and to nominate a designated brother of the deceased as executor; whereas from the evidence it appeared that the original will had bequeathed only the real estate to such devisees, with a restriction that the timber situated thereon should not be sold until the devisees arrived at the age of 21 years, and that the will had bequeathed all of the per[896]*896sonalty to other relatives, and nominated a different brother as executor. Held:

No. 11220. July 16, 1936. JR. Garter Pittman and J. H. Paschall, for plaintiffs. Maddox, Matthews & Owens and J. G. B. Erwin, for defendant.

1. In order to probate an alleged copy of a lost or destroyed will, it is necessary to prove, among other things, that the copy is in substance and intent the same as the original. Code, § 113-611; Bond v. Whitfield, 32 Ga. 215; Jefferson v. Bowers, 33 Ga. 452; In re Ellis, 55 Minn. 401 (56 N. W. 1056, 23 L. R. A. 287, 43 Am. St. R. 514); Preston v. Preston, 149 Md. 498, 513 (132 Atl. 55); 68 C. J. 1034, § 831.

2. The evidence adduced contained a material and substantial variation from the allegations made in the application for probate; and for this reason, regardless of other questions, the court did not err in granting a nonsuit. ' Judgment affirmed.

All the Justices concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Atkinson, Justice.

This was a proceeding to probate an alleged copy of a will, it being alleged, (a) that the original was destroyed without the consent of the testatrix; (b) that its destruction was induced by fraud and undue influence exerted upon the testatrix by a named heir at law; and (c) that the testatrix was insane at the time of its destruction. A caveat was filed, and upon a trial in the superior court, after an appeal from the court of ordinary, the court ordered a nonsuit. To this judgment the plaintiff excepted. The alleged copy purported to give all of the property of the testatrix, both real and personal, without restriction or limitation, to named devisees, who were minor nieces of the testatrix, and to nominate a designated brother of the deceased as executor; whereas from the evidence it appeared that the original will had bequeathed only the real estate to such devisees, with a restriction that the timber situated thereon should not be sold until the devisees arrived at the age of 21 years, and that the will had bequeathed all of the per[896]*896sonalty to other relatives, and nominated a different brother as executor. Held:

No. 11220. July 16, 1936. JR. Garter Pittman and J. H. Paschall, for plaintiffs. Maddox, Matthews & Owens and J. G. B. Erwin, for defendant.

1. In order to probate an alleged copy of a lost or destroyed will, it is necessary to prove, among other things, that the copy is in substance and intent the same as the original. Code, § 113-611; Bond v. Whitfield, 32 Ga. 215; Jefferson v. Bowers, 33 Ga. 452; In re Ellis, 55 Minn. 401 (56 N. W. 1056, 23 L. R. A. 287, 43 Am. St. R. 514); Preston v. Preston, 149 Md. 498, 513 (132 Atl. 55); 68 C. J. 1034, § 831.

2. The evidence adduced contained a material and substantial variation from the allegations made in the application for probate; and for this reason, regardless of other questions, the court did not err in granting a nonsuit. ' Judgment affirmed.

All the Justices concur.

Cite This Page — Counsel Stack

Bluebook (online)

187 S.E. 391, 182 Ga. 895, 1936 Ga. LEXIS 591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/woodruff-v-woodruff-ga-1936.

Opinion

Related

Cite This Page — Counsel Stack