Harp v. Adams , 148 Ga. 22 ( 1918 )

Atkinson, J.

A paper propounded as the nuncupative will of Mrs. Teresa Harp declared: “I want all my property equally divided between my brothers and sisters and Mr. A. D. Harp; and if Lovie and Sandy would go and live with Narcissa and Bobbie, at their death the land would go to them. My property consists of one half of the John Hewell land, and my interest in my father’s estate. I have six hundred and five dollars in the bank.” On the trial of the issue raised by caveat to the prpbate of the will, two of the subscribing witnesses to the paper testified in substantial accord therewith; but the third witness testified that the alleged testatrix “said as her will: ‘I want my property equally divided between Mr. Harp and my brothers and sisters; and if Lovie and Sandy will go down and live with Bobbie and Narcissa, at their death their part of the property will go tp Lovie and Sandy.’ ” Held: In order for the evidence to be sufficient to set up the alleged will, the testimony of all three of the witnesses should substantially conform to the statements of the paper propounded as the will in all of its material parts. Harp v. Adams, 142 Ga. 5 (82 S. E. 246); Reid v. Wooster, 142 Ga. 359 (82 S. E. 1054). Inasmuch as the estate was declared in the paper to consist of both land and personal property, and two of the witnesses, testifying to the disposition to Lovie and Sandy, described the contemplated bequest to them as “land,” and the third witness, referring to the same bequest, employed the broader term, “property,” there was a material variance, and there was a failure upon the part of all three of the witnesses to testify in substantial accord with the language of the paper propounded as a will. It follows that the verdict setting up the paper as the will was unauthorized by the evidence; and the judge erred in refusing to grant a new trial.

Judgment reversed.

All the Justices concur, except Fish, G. J., absent, and Gilbert, J., disqualified.