This is a proceeding under the Code, § 113-611, and it is there stated that, when an original will has been lost or destroyed without the consent of the testator a copy, when clearly proved to be such, may be admitted to probate. Obviously, therefore, such copy must be a true copy, an exact copy, and must contain every essential required of a valid will. Among the essentials of a valid will under the law is that it must be witnessed by three or more. § 113-301. If the original will did not meet this legal requirement, it was invalid, and a copy thereof would likewise be invalid and could not be ordered to probate. If the original will, on the other hand, met this essential requirement, it contained the signatures of at least three particular persons, and any copy thereof, in order to be such, must also contain the signatures of at least three particular persons. The alleged copy in the present case showed no signatures of witnesses, and the evidence showed only that, from among five named individuals, three of such persons were witnesses, but the proof failed to designate which three. Relying upon evidence that does not and can not identify any three persons as witnesses to the will, the court could not possibly insert the names of at least three persons as witnesses, and hence, could not under the law establish and probate the instrument offered as a copy of the original will. This fatal defect in the evidence rendered the verdict illegal for the reason that it was unauthorized by the evidence. Therefore the court erred in overruling the general grounds of the motion for new trial.
The majority opinion does not deal with the foregoing, but places its reversal upon the ground that the court erred in overruling the demurrer to the petition. I am unable to agree with the majority. *Page 589 The provisions of the Code, § 113-611, make it very plain, indeed too plain for serious doubt, that the requisites to the successful maintenance of a proceeding thereunder are that a valid will was executed, and that it was never revoked, but has been lost or destroyed without the consent of the testator. It would attribute to the law a concern about a perfectly immaterial matter to say that the law is concerned about the time when the loss or destruction of the will occurred. The law plainly authorizes probate of the copy of the will, if without the consent of the testator the will has been lost or destroyed at any time after it came into existence. Whether this occurred before or after the death of the testator, makes no difference under the law, provided only that he did not consent thereto. The law is interested in executing the will and intention of the testator, and it provides for the probate of a copy as the legal means of preventing a defeat of such testamentary desire and purpose. This concern of the law is continued throughout the time subsequent to the execution of the will. The remedy is available without regard to the particular time over that period at which the will disappeared by loss or destruction. This ought to demonstrate that fixing the time of its disappearance is an immaterial part of the pleading, provided it is alleged that such disappearance was without the consent of the testator. The majority opinion gives to the time at which the will disappeared an importance never intended by the law, and in doing this it seems to me the majority overlooked the fundamental purpose of the law, and allows a defeat of that purpose by an immaterial and, hence, frivolous matter. The following hypothetical case demonstrates conclusively to my mind the fallacy and serious danger in the majority ruling. A executes in proper form a valid will, making B the sole legatee and executor, and leaving it in B's custody. One year thereafter, in conversation with B, A discusses the terms of the will and together they read it, and B puts it back where he had it. One month thereafter B, not having seen the will since their previous conversation, is told by A that it is A's desire and intention that his estate go to B under the will. During the conversation A is stricken and dies without regaining consciousness. One week after A's death, B makes diligent search of all his files and papers and is unable to locate the will. No witness can be found who has seen the will or has knowledge of its destruction. B testifies, upon the *Page 590 proceeding to establish a copy, to the facts above related. No other evidence touching the existence of the will subsequently to its execution can be found or introduced. Would the proceeding fail because of the inability to allege and prove whether the will was destroyed without the consent of A, or was lost or destroyed after his death. Surely the law would not tolerate defeat of its purpose by a judgment against the probate of such copy. If the petition was brought in two counts, one alleging destruction without the consent of the testator, and the other alleging loss or destruction after his death, when the evidence closed the petitioner would be unable to elect upon which count he would stand, since his evidence would not prove either one, standing alone, although it would undeniably prove the fundamental fact about which the law is concerned, to wit, that a genuine will had been lost or destroyed without the testator's consent. I do not think that the suggestion of the majority opinion as an answer to the dilemma presented by the above hypothetical case has any merit. Their suggestion is that in such a case the petitioner in one count make all the allegations found in the present petition, and add the averment that for want of information the petitioner could not say whether the disappearance of the will occurred before or after the testator's death. It seems to me that any layman would undoubtedly understand that the allegations in the present case mean clearly that the petitioner is unable to allege whether the will was lost or destroyed before or after the testator's death. The opinion cited and relied upon by the majority, in Wood v. Achey,147 Ga. 571 (94 S.E. 1021), does not in my judgment have any application to the question here involved. There the only reference in the petition to the disappearance of the will was the allegation that it had been "lost or destroyed." It did not allege that this was without the consent of the testator, while under the law, if it occurred with his consent, the copy could not be probated. This allegation was challenged by demurrer, and the opinion of this court upheld the demurrer. Obviously the petition was subject to the demurrer, and the discussion in the opinion was sound and correct as applied to the facts in that case. In that case it was necessary, if the petition remained silent as to the testator's consent, to allege that the loss or destruction occurred after the testator's death, and if this additional allegation was not made, then it would become necessary to allege that *Page 591 it was destroyed or lost without the consent of the testator. What was there said is far from saying that in this case the allegation that the will had been destroyed without the testator's consent or had been lost or destroyed after his death was subject to demurrer upon the ground of duplicity.