Graham v. Stansell

Duckworth, Chief Justice. Where, as here, two instruments were drawn and dated the same day, each being executed with all the solemnity and legal requirements of a will in this State, and each referring to the other so that one could be stated to be a joint will to a single tract of land owned by the testators, and the other to the balance of their respective estates, even though each instrument reads that it is the joint last will and testament of the testators, “revoking any and all others heretofore made,” yet the body of the instrument devising the estate other than the farm tract shows no intent to revoke the separate will to the farm, if the will to the separate farm tract be made first, and the will to the farm showing clearly that it revoked only all other wills “to the said farm,” the lower court did not err in dismissing the caveat complaining that both instruments can not be probated as “the last will and testament of the deceased.” The two instruments are not repugnant to each other in any manner and are entitled to probate as the last will and testament or as such with codicil. 57 Am. Jur. 190, 191, Wills, § 228; Code §§ 113-109, 113-405; Castens v. Murray, 122 Ga. 396, 399 (50 SE 131, 2 AC 590); Byrd v. Riggs, 209 Ga. 59 (2) (70 SE2d 755). The caveat only objecting to the probate of both papers that they are “not as combined the last will and testament of the deceased” amounts to a mere conclusion of the pleader (law), depending only upon the language in the two instruments to defeat them by showing that one or the other revokes the other. There being no allegations showing the combination of act and intent to revoke, the caveat was properly dismissed. [833] Baucum v. Harper, 176 Ga. 296 (168 SE 27); Marlin v. Hill, 192 Ga. 434 (15 SE2d 473). Submitted April 8, 1963 Decided April 16, 1963. Kemp & Watson, E. Ralph Ivey, for plaintiff in error. Parker, Clary & Kent, contra. Judgment affirmed. All the Justices concur.