PAYNE et al. v. PAYNE et al., 229 Ga. 822, 194 S.E.2.d 458 (1972)
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R. Wilson Smith, Jr., John H. Smith, Oliver & Oliver, Robert Oliver, for appellees.Gunter & McDonald, Douglas W. McDonald, for appellants.
1. After an appeal by caveators to the probate of a will has been filed in the superior court, their caveat may be amended as to any issue which could have been raised in the court of ordinary.
2. The trial judge did not err in granting a continuance upon the motion of the caveators.
3. Parol declarations of a testator may be admitted to support or rebut a presumption that the will has been revoked, but such parol declarations alone are insufficient to establish the revocation of a will. It was thus error to grant the motion for summary judgment of the caveators which was supported by no other evidence except parol declarations of the testator that he had destroyed his will.
4. The evidence introduced on summary judgment did not show that there is no genuine issue as to any material fact, and it was not error to deny the motion for summary judgment of the propounders.
Willard Roy Payne and Guy Joseph Payne sought to probate in solemn form the will of Ben Ace Payne, executed August 29, 1966. Julius Payne and others filed a caveat. A judgment adverse to the caveators was entered by the acting ordinary, and an appeal was filed by them to a jury in the superior court. Motions for summary judgment were filed by both the propounders and the caveators, and the superior court judge entered a judgment granting the motion for summary judgment of the caveators, and denying the motion for summary judgment of the propounders. The propounders appeal from this judgment.
1. The caveat filed in the court of ordinary alleged that the will offered for probate as the will of Ben Ace Payne was not signed by him, and that it was not his will. After the appeal was filed in the superior court, the caveators amended their caveat by adding the following allegations: Ben Payne destroyed the original of the purported will sought to be probated, with the intention of revoking it, and no written will was made thereafter by Ben Payne. After Ben Payne destroyed and revoked the purported will, he expressed his desire that all of his property be distributed among his heirs, which was contrary to the purported will. The will sought to be probated did not express the de sire and will of Ben Payne. The document offered by the propounders as the will of Ben Ace Payne was a carbon copy of the original will, which original will was destroyed.
The evidence offered by the caveators in support of their motion for summary judgment was on the issue of revocation. It is asserted by the propounders that the trial judge erred in considering this issue, which the caveators failed to raise before the court of ordinary. The issue of revocation was raised in a general way in the court of ordinary in the ground of caveat asserting that the will offered for probate was not the will of Ben Ace Payne. "If the will offered for probate has been revoked for any reason, it is not the will of the testator, and a judgment refusing it probate must be rendered." Sutton v. Hancock,
From a careful research of the cases on the subject we determine the rule to be that parol declarations of a testator accompanying an act of revocation may always be admitted; and where there is a presumption of law that the will was revoked (as in the case where a copy of a lost will is offered for probate), or where the evidence raises a presumption of revocation, parol declarations may be admitted to support or rebut such presumption of law or fact.
The caveators cite King v. Bennett,
One of the propounders in the present case, Willard Roy Payne, stated in his affidavit that Ben Ace Payne on or about September 14, 1966, gave him the duplicate will tendered for probate with the request that he store it safely in order that it be properly probated at his death.
With no presumption of law or fact that the original will had been revoked, evidence of parol declarations by the testator that he had revoked it would not be admissible.
Furthermore, the revocation of a will cannot be established by proof of parol declarations alone. Driver v. Sheffield,
The evidence offered by the caveators was insufficient to prove the revocation of the will, and the trial judge erred in granting their motion for summary judgment.
4. Summary judgment may be granted where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law . . ." but summary judgment will not be granted "where there are substantial issues of fact to be determined." Code Ann. 81A-156 (c) (Ga. L. 1966, pp. 609, 660; Ga. L. 1967, pp. 226, 238).
While the evidence of parol declarations of the testator was inadmissible in the absence of any evidence raising a presumption that the will had been revoked, it is not evidence without probative value. Should the caveators be able to produce any evidence raising a presumption of revocation, the parol declarations would be admissible.
There is therefore not such an absence of a genuine issue of fact between the parties as would entitle the propounders to prevail in their motion for summary judgment, and it was not error to deny their motion.
Judgment affirmed in part; reversed in port. All the Justices concur.
1972
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This document cites
- Supreme Court of Georgia - KING v. BENNETT., 215 Ga. 345, 110 S.E.2.d 772 (1959)
- Supreme Court of Georgia - CASH et al. v. CASH et al., Executors., 212 Ga. 416, 93 S.E.2.d 346 (1956)
- Supreme Court of Georgia - DRIVER et al. v. SHEFFIELD., 211 Ga. 316, 85 S.E.2.d 766 (1955)
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