Bond v. Reid , 29 Ga. App. 558 ( 1923 )

Bell, J.

(After stating the foregoing facts.)

Quoting from the Supreme Court’s decision transferring this case to this court: “ Properly construed, the proceeding is not one to probate a copy of a lost or destroyed will under the Civil Code (1910), § 3863, but is one to establish a copy of a lost record of a will theretofore duly probated and admitted to record. Civil Code (1910), § 5811; Nixon v. Lehman, 137 Ga. 516 (73 S. E. 747).” Bond v. Reid, supra. It is not shown by any of the evidence that the copy presented by the petitioner was a copy of any record, or of any will which had been duly probated. It does not appear that any witness except Mr. Stroheeker undertook to testify that the copy so presented was a correct copy of any will that the witness had ever known to be of file in the office of the ordinary, and the testimony of Mr. Stroheeker, construed most strongly in favor of the petitioner, shows only that the copy to which he referred was a copy of some document found by him in the ordinary’s office, purporting to be the will of Haywood Phillips; but it is not established even prima facie that the document had been probated as such will. It must be borne in mind that this is a proceeding to establish the lost record of a will.

The ordinary is required by law to record all wills which are duly probated. Civil Code (1910), §§ 3855, 3856, 3858, 3863, and 3864. It is the duty of the ordinary, among other things, to keep in his office “ a book for the record of wills.” Civil Code (1910), § 4808 (8). “A will is the legal expression of a man’s wishes as to the disposition of his property after his death.” Civil Code (1910), § 3827. It seems that the term “will” is applied not only in ordinary speech, but also in the statutes themselves (Civil Code (1910), § 3862 and cognate sections), as commonly to documents purporting to be such before probate as to wills which have been duly and legally established. It could, therefore, hardly be held that a witness, in speaking of a “ will,” is presumed to refer to a document which has been adjudged to be a will by a proper probate thereof, rather than merely to a document purporting to be a will which has never been established as such by a judgment of probate. “ Every person having possession of a will must file the same with the ordinary of the county having jurisdiction; and on failure to do so, the ordinary may issue process as for contempt, and fine and imprison the person thus withholding the paper, until the same shall be delivered.” Civil Code (1910), § 3862.

It would seem that the mere fact that a will may be of file with the ordinary is insufficient of itself to raise a presumption that the will has ever been probated; and proof that the document is merely a copy of such filed will, without more, would not be any evidence that the document is a copy of the record of the same. It does not appear from the evidence of the petitioner that the copy presented by him is a copy of any original which has even been recorded. If this had been shown, then a presumption of probate would have arisen, and it might have been inferred that this copy was also a true copy of the record, for § 5808 of the Civil Code (1910) provides as follows: “ If the original is found to have been recorded, and it does not appear whether it was done on proper probate, the court shall presume, until the contrary appears, that the same was done on proper probate.” In the case of Rogers v. Rogers, 78 Ga. 688 (3 S. E. 451), an original “will” was offered for the purpose of showing that after the death of the testator certain words were erased and others substituted therefor. In the third division of the opinion the court said: “ This paper came out of the ordinary’s office, but was not proved and had no entry of record or probate thereon, and it was not admissible for any other purpose than that for which it was offered. The complainants had no right to maintain their bill without showing probate of the will under which they claimed. This was not done; and the objection on that ground was fatal to their claim, and should have been sustained. There was error in overruling this objection and allowing the case to proceed without this proof. It may be that the original will was proved. It is true that it came out of the hands of the ordinary, and it was shown that it went into the hands of the ordinary at the death of the testator; but that does not sufficiently identify the probate and record of the original will offered and received in evidence. Upon this ground, therefore, we shall have to order this judgment reversed.”

The provision, of the law which requires every person having possession of a will to file it with the ordinary (§ 3862 of the Civil Code, above quoted) is to be presumed to have been complied with by every person concerned, especially in view of the fact that the ordinary is charged with the duty and authority to require such compliance. Eor the witness then to speak merely of a copy of the will does not warrant the conclusion that the will is other than one simply filed under the code section above referred to, even where the testimony shows such will to have been in the ordinary’s office, and we are of the opinion that such evidence is without any probative value whatever in support of a petition by which it is sought directly to establish a lost record of a will. It would seem, by an analogy of the principle stated in Rogers v. Rogers, supra, that in order to maintain such a proceeding, the petitioner must show a probate of the will, the copy of which he seeks to establish as a copy of the record of the will, because there can be no record until there is first a probate.

If the evidence for the petitioner had shown that the will from which the petitioner’s copy was taken had been recorded, then, in view of the provisions of § 5808 of the code, supra, we think it would have been inferable that such copy was likewise a correct transcript of the record of such will, made upon a due probate thereof, and in such event it would have been sufficient to raise an issue for determination by the jury as to whether the copy presented by the petitioner or that presented by the respondents was the correct copy of the record sought to be established.

We are of the opinion that the evidence of Horne, who is in no way impeached or contradicted, and who testifies positively that the copy presented by the respondents was correctly transcribed by him from the record of wills, must prevail over the evidence offered by the petitioner, which is insufficient in the particulars which we have sought to set forth; and that the court, therefore, was right in directing a verdict in favor of the respondents,

In view of our conclusion that the evidence which was unobjeeted to demanded the verdict that the court directed in favor of the respondents, and that the judgment must on’that ground be affirmed, it is unnecessary to decide the question, which has thus become moot, as to whether there was error in the admission of the documentary evidence over the objections of the petitioner, to all of which we have referred in the statement of facts; for even if it should be conceded that there was error in the admission of the same, the error was harmless and immaterial when the other evidence demanded the verdict.

Judgment affirmed.

Jenlcins, P. J., and Stephens, J., concur.