A paper alleged to be the last will and testament of Edward McIntyre was propounded for probate. A son of the deceased filed a caveat on the ground that the paper, though once a will, had been revoked by cancellation and obliteration. The finding of the ordinary was in favor of the caveator, and the propounder appealed to the superior court, where a verdict and judgment were rendered setting up the paper offered for probate as the will of the deceased. A motion, for anew trial was filed by the caveator, and on the hearing the following order was passed: “In this case.it appeared to me at the trial that the evidence inclined against the will, but the jury are the sole and exclusive judges of all questions of fact, and I have no more right to require them to take the facts of the case from the court than they have to require me to take the law from them. Upon this branch of the motion, therefore, I think it would be an usurpation of power to'interfere with the verdict upon the ground that the evidence did not authorize it, for the reason that there is sufficient evidence to support the verdict.” The order then recited that no error of law was committed and that a new trial would not be granted. The caveator excepted.
1. The application was for a first new trial, and. was based partly upon discretionary grounds, that is, that the verdict was contrary to the evidence and decidedly and strongly against the weight of the evidence. The order indicates that the trial judge did not exercise the discretion which the law contemplates he shall exercise in every such case where the evidence is conflicting. The order is very similar in verbiage to that passed in Thompson v. Warren, 118 Ga. 644, where a new trial was ordered by this court solely on the ground that the trial judge had not exercised any discretion with reference to the approval or disapproval of the verdict. It is contended that Thompson v. Warren is not controlling, because in that case there was a special exception raising thé point upon which the decision was made, whereas there is no. such exception in the present case. We do not think this a valid
2. The paper offered for probate had been duly and legally executed as a will. Some time after its execution the testator drew pencil lines through certain portions of the will, and also .caused slips of blank paper to be pasted over certain clauses in the will, through which pencil lines appear to have been previously drawn. The lines were lightly drawn and left the writing perfectly legible. The will purported to have been executed in Effingham county, and a line was drawn through the word Effingham, and the word Chat-ham written in pencil to the left. The abbreviation “ Edwd.” in the name of the testator was canceled in the same way and the full name of Edward written above it. The remainder of the formal part of the will was left intact. Pencil lines were then drawn through nine or ten lines making bequests to testator’s wife and son, and over some of these lines a blank slip was pasted. The fourteen lines following were unaltered,, these describing certain real estate and personal property, and stating that they were given to — a blank slip being pasted over the name of the beneficiary. On this slip was written, “leave two lines,” and diagonally to the right and above the slip was written, “ 2 blank lines.” The clause following was dealt with in the same way, the name of the beneficiary being covered with a slip of paper on which was written, “ 3 lines.” No slip was pasted over the name of the beneficiary of the property described in the next clause, but pencil lines were drawn through it, and the words “ 2 blank lines ” written in pencil to the right. • Pencil lines were drawn through the next clause disposing of a share of stock in a corporation to testator’s grandson. The following clauses, providing for the payment of debts, making disposition of cemetery lots, nominating testator’s wife as executrix, and conferring upon her certain powers, were left intact. The date upon which the will appeared to have been executed was canceled with pencil lines, and the words “ two (2)-
As a general rule, the burden is on a person attacking a paper offered for probate as a will to sustain the grounds of his attack. But by express provision of our statute, where a will has been canceled or obliterated in a material part, a presumption of revocation arises, and the burden is on the propounder to show that no revocation was intended. Civil Code, § 3343. See also Howard v. Hunter, 115 Ga. 358; Cutler v. Cutler (N. C.), 57 L. R. A. 209. How far the cancellation or obliteration must extend before this presumption will arise is not settled. See Malone’s admr. v. Hobbs (Va.), 39 Am. Dec. 266. Where the paper is found among the testator’s effects, there is also a presumption that he made the cancellations or obliterations. See cases cited in note to Graham v. Burch, 28 Am. St. R. 351. The presumption that revocation was intended will certainly arise where the testator draws lines through and pastes slips of paper over clauses of the will disposing of portions of his property, and also draws lines through his signature and those of the subscribing witnesses. It having been shown that the paper offered for probate in this case had been in the custody of the deceased up to the time of his death, the propounder was met with both of the presumptions above alluded to.
3-4. There are cases, chiefly English, holding that a cancellation with a pencil is presumptively deliberative and not final, and no presumption of revocation arises from such cancellations. See 2 Gr. Ev. (16th ed.) § 681, p. 626, note 12; Mence v. Mence, 18 Ves. Jr. 348, and cit. in footnote (a). The American cases generally do not adopt this rule. Townshend v. Howard, 86 Me. 285; Woodfill v. Patton, 76 Ind. 575, 40 Am. R. 269; Gardner on Wills, § 81, p. 258. Mr. Underhill characterizes the English rule as absurd, and says that “ the true rule is that the cancellation of a will in lead pencil is only one fact to be considered in determining the effect of the cancellation and the intention with which it was made. Where a will is produced with lead pencil cancellations, it will be presumed that they were done by the testator animo revooandi; and it is upon the party.claiming that they were deliberative and. no.t final to establish that fact.” 1 Und. Wills, § 230. This statement of the law expresses our views.
6, 7. Reference is made in the brief of counsel for the defendant in error to what is known as the doctrine of “dependent relative revocation.” Under the operation of this doctrine it has been held that if a testator cancel or destroy a will, with a present intention to make a new will as a substitute for the old, and the new will is not made, or if made fails of effect for some reason, it will be presumed that the testator preferred the old will to an intestacy, and this testament will be given effect. We believe this doctrine to be sound, when properly understood and properly qualified. It is a doctrine of presumed intention, and has grown up as a result of an effort which courts always make to arrive at the real intention of the testator. Some of the eases appear to go to extreme lengths in the application of this doctrine, and seem to defeat the very intention at which they were seeking to arrive. The doctrine, as we understand it and are willing to apply it, is this: The mere fact that the testator intended to make a new will, or made one which failed of effect, will not alone, in every case, prevent a cancellation or obliteration of a will from operating as a revocation. If it is clear that the cancellation and the making of the new will were parts of one scheme, and the revocation of the old will was so related to the making of the new as to be dependent upon it, then if the new will be not made, or if made is invalid, the old will, though canceled, should be given effect, if its contents can be ascertained in any legal way. But if the old will is once revoked,—if the act of revocation is completed,— as if the will be totally destroyed by burning and the like, or if any other act is done which evidences an unmistakable intention to revoke, though the will be not totally destroyed, the fact that the testator intended to make
8. The evidence did not demand the verdict rendered. A witness for the caveator testified that he was present in the room during the last illness of the deceased, and that he said to his son, the caveator, “Willie, I have left a pencil memorandum of a will . — it is nota will — I was not'able to finish [or complete] it; but I call upon Willie to carry out the provisions of this pencil memorandum.” The witness testified positively and unequivocally that this was the exact language of the deceased. Where the issue is revocavit vel non, the declarations of the testator are, in this
Judgment reversed.