Kitchens v. Kitchens , 39 Ga. 168 ( 1869 )

Brown, C. J.

This proceeding was instituted under section 2396 of the Revised Code, and the case turns upon the proper construction of that section, which is in these words: “ If a will be lost or destroyed subsequent to the death, or without the consent of the testator, a copy of the same, clearly proved to be such by the subscribing witnesses and other evidence, may be admitted to probate and record, in lieu of the original; but, in every such case, the presumption is of revocation by ¿he testator, and that presumption must be rebutted by proofi5’

1. The first question presented is, what proof of execution of the will is required by this section of the Code. We hold that the execution must be proved by three subscribing witnesses, if in life, and within the jurisdiction of the Court, as in case of probate of a will in solemn form.

2. But it is insisted that the contents of the will must also be proved by three witnesses, and that the presumption of revocation which is raised by law, must be rebutted by three witnesses. We do not think this a fair construction of the statute. If we construe it literally, as counsel for plaintiff in error insists, we must require the copy to be clearly proved by the three subscribing witnesses and other evidence. We cannot suppose the Legislature intended to require the execution, the contents, and the facts necessary to rebut the presumption of revocation, all to be proved by the subscribing witnesses, and other or additional evidence. Again, it must not be forgotten that this literal construction, if enforced, would require each of these facts to be proved, not by three witnesses and other evidence, but by the subscribing witnesses; no others would do. This would, in most cases, be an utter impossibility. The three subscribing witnesses might be able to prove the execution of the will, and three other equally credible witnesses might have seen the will destroyed, since the death of the testator, and still three others might have read the will, and might be able to swear to its contents. But the literal construction of the statute would, with this conclusive evidence in Court, reject the probate, because the subscribing witnesses might not know material facts which others in Court would clearly prove. In our opinion, the true construction is, that the execution of the will must be proved as above stated, by the subscribing witnesses; and the destruction or loss of the will, and the facts necessary to rebut the presumption of revocation by the testator, may be proved by such “ other evidence ” as satisfies the conscience of the jury, that the will so executed as testified to by the subscribing witnesses, was lost or destroyed since the death of the testator, or,- without his consent, before his death. Indeed, it very rarely happens that the three subscribing witnesses hear the will read, or know anything of its contents. And, on the other hand, it frequently happens that some friend of the testator does know the contents of the will, who is not a subscribing witness, -while others may know what disposition has been made of the will since the testator’s death. The construction we adopt seems to us to be the rational one, while the literal construction contended for seems not only to be absurd, but to defeat the will of the Legislature by adhering too closely to the language used by it. The maxim applies : “ qid hceret in litera hc&ret in cortiee.” We have said the evidence must be such as to satisfy the conscience of the jury. It should be very clear and strong: 2 Grreenl. Ev., sec. 688. But, as in all other cases where it is in conflict, the jury must be the judges of the credibility of the -witnesses.

3. If there is evidence to sustain the verdict, under the rules above laid down, a new trial will not be granted. We are not prepared to set aside the verdict in this case for want of evidence. There is much conflict in the testimony which cannot be reconciled. But we think, after an attentive perusal of it, voluminous as it is, that it preponderates in favor of the verdict. And as the jury, whose province it was to weigh it in connection with the credibility of each witness, have pronounced upon it, and the Court below has refused to set aside the verdict, we will not interfere with it.

Judgment affirmed.